Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible: (a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading; (i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate; (c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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); (d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; (e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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; (f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities; (i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters); (j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter; (k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement; (l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable; (m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement; (n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading); (p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 6 contracts
Sources: Registration Rights Agreement (Cannae Holdings, Inc.), Registration Rights Agreement (Cannae Holdings, Inc.), Registration Rights Agreement (Cannae Holdings, Inc.)
Registration Procedures. If and whenever Splitco is required by (a) Whenever a Stockholder requests or provides notification to the provisions Company of this Agreement to effect or cause the registration of joining in a request that any Registrable Securities under Shares be registered pursuant to this Article V, the Securities Act Company shall use reasonable best efforts to effect, as soon as practical as provided in this Agreement Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(or i) subject to the other provisions of this Article V, use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of Registration Statement with respect to such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco Shares and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously (unless it is automatically effective for such period as any Participating Holder pursuant to such registration statement shall requestupon filing), and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or before sending deemed to be incorporated by reference in a response Registration Statement filed pursuant to an SEC comment letter prior a request for a Demand Registration, the Company shall furnish or otherwise make available to any the holders of the Registrable Shares covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file any document with the SEC which such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the view United States;
(iv) deliver, without charge, such number of Splitco or its counsel does not comply copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act or to be delivered by such distributor, of the rules occurrence of regulations thereunder or any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(ivii) prepare and file with in the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies managing underwriters of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter offering may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Securities owned Shares covered by such seller the Registration Statement (Splitco hereby consenting including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the use in accordance with all applicable laws Prospectus, and making such representations and warranties to the holders of each such Offering Document by each such Participating Holder Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the offering Company’s Auditor available for any such managing underwriters’ due diligence and sale have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Securities Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such registration statement or prospectus)counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(dix) use its reasonable best efforts to register or qualify cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Securities covered by such registration Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement under such other securities or state “blue sky” laws (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such jurisdictions as any sellers of Registrable Securities or any managing underwriterperiod, if any, which earnings statement shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for satisfy the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service an earning statement under Section 11(a) of process in any such jurisdiction;the Securities Act and Rule 158 thereunder; and
(exii) promptly notify each Participating Holder selling Stockholder and each the managing underwriterunderwriters of any Underwritten Offering, if any and, if requested by any such Person, confirm such notice in writing: any:
(i1) when the registration statement Registration Statement, any pre-effective amendment, the Prospectus or any other Offering Document Prospectus supplement or any post-effective amendment to the Registration Statement has been filed with the SEC and, with respect to the Offering DocumentRegistration Statement or any post-effective amendment, when the same has become effective; ;
(ii2) of any comment letter or request by the SEC or state securities authority any other Government Entity for amendments or supplements to the registration statement Registration Statement or the prospectus related thereto Prospectus or for any additional information; information regarding such Stockholder;
(iii3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; Registration Statement;
(iv4) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities Shares for sale under the applicable securities or state “blue sky” sky laws of any jurisdiction or the initiation of any proceeding for such purposejurisdiction; and
(v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi5) if at any time the Company has reason to believe that the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall ) contemplated by this Section 5.07 cease to be true and correct in all material respects; andcorrect. For the avoidance of doubt, if the notification relates to an event described in clause provisions of clauses (vvii), unless Splitco has declared that a Postponement Period exists, Splitco (viii) and (xi) of this Section 5.07(a) shall promptly prepare apply only in respect of an Underwritten Offering and furnish to each only if (based on market prices at the time the offering is requested by such seller and each underwriter, if any, a reasonable Stockholder) the number of copies of a prospectus supplemented or 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 Shares to be stated therein or necessary to make the statements therein sold in the light of the circumstances under which they were made not misleading;
offering would reasonably be expected to yield gross proceeds (fprior to deducting underwriting discounts and commission and offering expenses) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period Stockholder of at least twelve the Minimum Amount.
(12b) consecutive months beginning The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the first day of Splitco’s first calendar quarter after the effective date Company of the registration statement, which earnings statement shall satisfy the provisions occurrence of an event pursuant to Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any5.07(a)(vi), if the listing each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such Registrable Securities is then permitted under the rules of such exchange, or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of time and that complies with Rule 11Aa210b5-1 of the Exchange Act orAct) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), failing that, secure Nasdaq National Market authorization for such shares and, without limiting if so directed by the generality Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the foregoing, take all actions that may be required by Splitco as Prospectus covering such Registrable Shares current at the issuer time of receipt of such Registrable Securities in order to facilitate notice, provided, however, that the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order time periods under this Article V with respect to the certificates with respect to length of time that the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership effectiveness of the shares being sold, in such denominations requested a Registration Statement must be maintained shall automatically be extended by the sellers amount of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with time a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order Stockholder is required to expedite or facilitate the discontinue disposition of such Registrable securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(it being e) It is understood and agreed that the Holders any failure of the Registrable Securities which are Company to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and file a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior any amendment or supplement thereto or to the filing or use of cause any free writing prospectus, provide copies of such document to counsel become or remain effective or usable within or for each Participating Holder and any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to each managing underwriterreasons that are not reasonably within its control, if any, and make the representatives or due to any refusal of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco to permit a registration statement or its counsel contains an untrue statement of a material fact prospectus to become or omits to state a material fact required remain effective or to be stated therein used because of unresolved SEC comments thereon (or necessary to make on any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the prospectus contained Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such regStockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 6 contracts
Sources: Stockholders Agreement (Temasek Holdings (Private) LTD), Stock Purchase Agreement (Temasek Holdings (Private) LTD), Stockholders Agreement (Univar Nv)
Registration Procedures. If and whenever Splitco is required (a) In the case of a registration to be effected by the provisions Company pursuant to this Warrant Agreement in which the Holder is participating, the Company will keep the Holder advised in writing as to the initiation of this Agreement such registration and as to effect or cause the registration of any Registrable Securities under completion thereof. In connection with such offering, the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possibleCompany shall promptly:
(a1) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of respect to the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such a period as any Participating Holder pursuant to such of at least 60 days or until the distribution described in the registration statement relating thereto has been completed, whichever shall requestfirst occur;
(2) in connection with the preparation and filing of a registration statement, and no less than 180 daysgive the Holder, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managerits underwriters, if any, copies and its counsel, the opportunity (over a reasonable period of reasonably complete drafts of all time) to review and comment upon any such documents proposed to be registration statement, each prospectus included therein or filed (including all exhibits thereto with the SEC, and each document incorporated by reference therein amendment thereof or supplement thereto, and give each of them access to financial and other records, pertinent corporate documents and properties of the Company and an opportunity to discuss the business of the Company with its officers, its counsel and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of the Holder and the underwriters’ respective counsel, to conduct a reasonable due diligence investigation within the requirements of the Securities Act;
(3) furnish to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably objectof the securities being registered such number of copies of the registration statement, providedpreliminary prospectus, that, notwithstanding final prospectus and other documents incident thereto as such underwriters and the foregoing, in no event shall Splitco be required Holder from time to time may request;
(4) prepare and file any document with the SEC which such amendments and supplements to such registration statement and the prospectus used in the view of Splitco or its counsel does not connection with such registration statement as may be necessary to comply with the requirements provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement;
(5) register or qualify the Registrable Securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be requested by the Holder for the distribution of the rules Registrable Securities covered by the registration statement to be sold by the Company;
(6) enter into an underwriting agreement in customary form and substance satisfactory to the Holder and the managing underwriter or underwriters of regulations thereunder the public offering of such securities, if the offering is to be underwritten, in whole or contains in part;
(7) notify the Holder at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingthen existing;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either 8) cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such on Nasdaq;
(9) unless any Registrable Securities as a Nasdaq National Market “national market system security” within shall be in book-entry form, cooperate with the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco as the issuer of such Registrable Securities in order Holder to facilitate the managing underwriter’s arranging for timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to any registration statement free of any restrictive legend and in such permitted denominations and registered in such names as the Holder may request in connection with the sale of Registrable Securities pursuant to such registration statement; and
(10) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to the Holder, as soon as reasonably practicable, an earnings statement covering the period of at least two market makers as such with respect to such shares with FINRA12 months, and comply (and continue to comply) but not more than 18 months, beginning with the requirements of any self-regulatory organization applicable to Splitco, 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 first full calendar month after the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to which earnings statement shall satisfy the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership provisions of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regAct.
Appears in 6 contracts
Sources: Warrant Agreement (AMEDICA Corp), Warrant Agreement (AMEDICA Corp), Warrant Agreement (AMEDICA Corp)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration Registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts Section 2 and Section 3 hereof, the Company will effect such Registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Company will cooperate in the sale of the securities and will, as expeditiously as possible (i) shall be selected by Splitco and (ii) shallto the extent applicable, in the case of a shelf registration, Takedown):
(a) Prepare and file with the Commission a registration statement or registration statements on such form which will be available for the sale of the Registrable Securities by the Company or the selling Holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its commercially reasonable best efforts to cause such registration statement to become effective and to remain continuously effective for such period as provided herein; except that before filing a registration statement or prospectus or any Participating Holder pursuant amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company will furnish or otherwise make available to the Holders who are including Registrable Securities in such registration statement shall requeststatement, their counsel and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all disclosures relating to such documents proposed to be filed (including all exhibits thereto Holders and each document incorporated by reference therein to the extent then required by the rules and regulations Item 507 of the SECRegulation S-K (or any similar successor requirement), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessarycounsel, and, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel, provide such counsel reasonable opportunity to conduct a reasonable investigation within the meaning of the Act, including reasonable access to the Company’s books and shall records, officers, accountants and other advisors. The Company will not file include any Offering Document information relating to a Holder in any such registration statement or prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Registration pursuant to Section 2 or Section 3 to which the Participating Holders Holder (if such registration statement includes Registrable Securities of the Holder) reasonably objects, in writing, on a timely basis, unless, in the opinion of the Company and its legal counsel, the inclusion of such information is necessary to comply with applicable law. It shall be deemed a reasonable review and comment opportunity if such counsel shall have submitted comments, or failed to submit comments, in each case, within five (5) business days following receipt of the relevant documents by such Holder.
(b) Prepare and file with the Commission such amendments and post-effective amendments to each registration statement as may be necessary to keep such registration statement continuously effective during the period provided herein and comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement; and cause the related prospectus to be supplemented by any prospectus supplement as may be necessary to comply with the provisions of the Act with respect to the disposition of the securities covered by such registration statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Act. Notwithstanding the foregoing, the Company shall be entitled at all reasonable times to suspend a registration statement that includes Registrable Securities during the pendency of any amendments required by this Section 4(b). Such suspension or suspensions shall be effective upon the transmittal of notice to an affected Holder in compliance with, and using the most expeditious practical means of communication permitted by, Section 11 below.
(c) Notify each selling Holder and the managing underwriters, if any, shall reasonably objectpromptly, providedand (if requested by any such Person) confirm such notice in writing, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a registration statement or related prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a registration statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, prospectus or documents so that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements case of the Securities Act or of the rules of regulations thereunder or contains an registration statement, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make any statement therein 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.
(id) prepare and file with Use commercially reasonable efforts to avoid the SEC such amendments, post-effective amendments and supplements (including, without limitation, issuance of any reports required to be filed pursuant to order suspending the Exchange Act) to such effectiveness of a registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as or any Participating Holder pursuant to such registration statement shall request and to comply with the provisions suspension of the Securities Act with respect to qualification (or exemption from qualification) of any of the sale or other disposition of all Registrable Securities covered by for sale in any jurisdiction, or, if issued, to obtain the withdrawal or lifting of any such registration statement in accordance with the intended methods of disposition order or suspension as promptly as practicable.
(e) If requested by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Managermanaging underwriters, if any, or the Holders of Splitco’s reasonable determination that 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 to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwritersuch information as the managing underwriters, if any, of the securities covered by or such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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 such post-effective amendment as soon as practicable after the Company has received such request, including without limitation, with respect to any hedging activity associated with the Registrable Securities; except that the Company will not be required to take any actions under this Section 4(e) that are not in compliance with applicable law.
(f) Furnish or make available to each selling Holder, and each managing underwriter acquiring from or selling on behalf of such Holder, if any, without charge, at least one conformed copy of the registration statement, the prospectus and prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or underwriter). To the extent electronic prospectus delivery is permitted under the Act, any delivery of conformed prospectuses, registration statements, and supplements and amendments thereto, required by any paragraph of this Section 4, may be delivered by electronic means so long as the form of delivery can reasonably be expected to permit such Holder or Holders, and such underwriter or underwriters, if any, to satisfy their respective prospectus delivery obligations arising under the Act or otherwise. The Company’s electronic delivery pursuant to the preceding sentence is conditioned upon an undertaking by the Company to deliver, to the extent required under the Act, paper copies of all such documents upon request by a Person acquiring or proposing to acquire such securities.
(g) Deliver to each selling Holder, and the underwriters, if any, without charge, as many copies of the prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 4, hereby consenting consents to the use in accordance with all applicable laws of such prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register Register or qualify or cooperate with the selling Holders, 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities selling Holder or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, selling Holders to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), jurisdiction; except that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be is not then so qualified, (ii) take any action that would subject it to subject itself to material taxation or general service of process in any such jurisdiction where it is not then so subject, or to (iii) consent to general service of process in any such jurisdiction;.
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when Cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each relevant Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the relevant registration statement and only upon satisfaction of any prospectus delivery requirement arising under the Act or otherwise, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or such Holder may request at least two (2) business days prior to any sale of Registrable Securities.
(j) Use commercially reasonable efforts to cause the Registrable Securities covered by the registration statement to be registered with or any approved by such other Offering Document has been filed governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holders’ business, in which case the Company will cooperate in all reasonable respects with the SEC andfiling of such registration statement and the granting of such approvals, with respect as may be necessary to enable such Holder or Holders thereof or the Offering Documentunderwriters, when if any, to consummate the same has become effective; disposition of such Registrable Securities.
(iik) Upon the occurrence of any comment letter event contemplated by Section 4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) or request by the SEC 4(c)(vi) above, prepare as promptly as practicable a supplement or state securities authority for amendments or supplements post-effective amendment to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect a supplement to the suspension of the qualification of related prospectus or any Registrable Securities for sale under the securities document incorporated or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysrelating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; .
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) registration statement to releasebe authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such effective dateexchange.
(o) In connection with any underwritten offering, any stop transfer order with respect to the certificates with respect to the Registrable Securities being soldenter into such agreements (including an underwriting agreement in form, scope and (Bsubstance as is customary in underwritten offerings) to furnish certificates without restrictive legends representing ownership of the shares being sold, in and take all such denominations other actions reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Securities, and in such underwriting agreement and mayconnection, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) make such representations and warranties to the underwriters with respect to the business of the Company and its subsidiaries, and the registration statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same if and when requested, (ii) furnish to the underwriters and selling Holders opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) will be reasonably satisfactory to the managing underwriters), addressed to each of the underwriters and selling Holders covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, (iii) use commercially reasonable efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter comfort letters and updates thereof from the independent registered public accountants accounting firm of the Company (and, if necessary, any other independent registered public accounting firms of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the registration statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statement, in addressed to each caseof the underwriters and selling Holders, such letters to be in customary form and covering such matters as are of the type customarily covered in comfort letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same will contain indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Initiating Holders and (v) deliver such opinions documents and “cold comfort” letters (including, certificates as may be reasonably requested by the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 4(o)(i) above and to evidence compliance with any customary conditions contained in the case underwriting agreement or other agreement entered into by the Company.
(p) Make available for inspection by a representative of the selling Holders, any underwriter participating in any such “cold comfort” letter, events subsequent to the date disposition of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holdersany attorneys, and (ii) furnish to each Participating Holder upon its request and to each accountants or other professionals retained by such selling Holders or underwriter, if anyat the offices where normally kept, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its subsidiaries to supply the all information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regcase reas
Appears in 6 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (3G Capital Partners LP), Registration Rights Agreement (Burger King Worldwide, Inc.)
Registration Procedures. If It shall be a condition precedent to the obligations of the Company and whenever Splitco is any underwriter or underwriters to take any action pursuant to this Article V that the Shareholders requesting inclusion in any Piggyback Registration or Demand Registration (a "Registration") shall furnish to the Company such information regarding them, the Registrable Securities held by them, the intended method of disposition of such Registrable Securities, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article V as the Company shall reasonably request and as shall be required in connection with the action to be taken by the provisions of this Agreement Company. With respect to effect or cause the registration of any Registration which includes Registrable Securities under held by a Shareholder, the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts Company will, subject to accomplish the same), Splitco shall, as expeditiously as possibleSections 5.01 and 5.02 promptly:
(a) prepare Prepare and file with the SEC Commission a registration statement on an the 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities prescribed by the selling Holders thereof Commission and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously as soon as practicable thereafter; provided that the Company shall not be obligated to maintain such registration effective for such a period as longer than the Effectiveness Period; provided further that before filing a registration statement or prospectus or any Participating Holder pursuant amendments or supplements thereto, including documents incorporated by reference after the initial filing of the registration statement, the Company will furnish to the holders of the Registrable Securities covered by such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, the underwriter or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete or drafts of all such documents proposed to be filed (filed, including all exhibits thereto and each document documents incorporated by reference therein to in the extent then Prospectus and, if required by such holders, the rules and regulations of the SEC)exhibits incorporated by reference, at least three (3) business days prior thereto, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections holders and underwriters. Holders will have the opportunity to object to any information pertaining to any Participating Holder such holders that is contained therein and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall Company will make the changes corrections reasonably requested by such counsel and shall holders with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; provided, however, that the Company will not file any Offering Document registration statement or amendment thereto or any prospectus or any supplement thereto or any documents required to be incorporated by reference therein to which holders of a majority of the Participating Holders Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(ib) prepare Prepare and file with the SEC Commission such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith any documents required to be incorporated by reference therein as may be necessary to keep such the registration statement continuously effective for such a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus supplement, and as any Participating Holder so supplemented to be filed pursuant to such registration statement shall request Rule 424 under the 1933 Act; and to comply with the provisions of the Securities 1933 Act applicable to it with respect to the sale or other disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease statement or supplement to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateprospectus;
(c) furnishFurnish to such Shareholder, without charge, to each Participating Holder and each underwriter, if any, such number of conformed copies of the securities covered by such registration statement and any post-effective amendment thereto, as such Shareholder may reasonably request, and such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendments or of the rules or regulations thereundersupplements thereto, and other documentsany documents incorporated by reference therein as the Shareholder or underwriter or underwriters, as such seller and underwriter if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned securities being sold by such seller the Shareholder (Splitco hereby consenting it being understood that the Company consents to the use in accordance with all applicable laws of each such Offering Document the prospectus and any amendment or supplement thereto by each such Participating Holder the Shareholder covered by the registration statement and the underwriter or underwriters, if any, in connection with the offering and sale of the securities covered by the prospectus or any amendments or supplements thereto);
(d) Notify such Shareholder, 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 material fact or omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the investors of such securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) In the case of an underwritten offering, enter into such customary agreements (including underwriting agreements in customary form) and make members of senior management of the Company available on a basis reasonably requested by the underwriters to participate in, "road show" and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities) and cause to be delivered to the underwriters reasonable opinions of counsel to the Company in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;
(f) Make available, for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to a 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 that are necessary to be reviewed by such person in connection with the preparation of such registration statement;
(g) If requested, cause to be delivered, immediately prior to the effectiveness of the registration statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), letters from the Company's independent certified public accountants addressed to each selling Shareholder (unless such selling Shareholder does not provide to such accountants the appropriate representation letter required by rules governing the accounting profession) and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the 1933 Act and the applicable rules and regulations adopted by the Commission thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;
(h) Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of the registration statement;
(i) Use its best efforts to cause all securities included in such registration statement to be listed, by the date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or other market on which the Common Stock is then listed or proposed to be listed by the Company, if any;
(j) Make generally available to its security holders an earnings statement, which need not be audited, satisfying the provisions of Section 11(a) of the 1933 Act as soon as reasonably practicable after the end of the twelve (12)-month period beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said twelve (12)-month period;
(k) After the filing of a registration statement, (i) promptly notify each Shareholder holding Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending issued or, to the effectiveness of Company's knowledge, threatened by the registration statement or the initiation of any proceedings for that purpose; (iv) Commission and of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or state “blue sky” sky laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish take all reasonable actions to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, statement or the lifting of any suspension of the qualification of any Registrable Securities at the earliest possible moment;
(l) Subject to the time limitations specified in paragraph (b) above, if requested by the managing underwriter or underwriters or such Shareholder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Shareholder reasonably requests to be included therein, including, without limitation, with respect to the number of shares being sold by the Shareholder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any term of the Registrable Securities for sale underwritten offering of the securities to be sold in any jurisdiction, such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to be incorporated in each case, as promptly as reasonably practicablesuch prospectus supplement or post-effective amendment;
(m) provide As promptly as practicable after filing with the Commission of any document which is incorporated by reference into a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement, deliver a copy of such document to such Shareholder;
(n) On or prior to the date on which the registration statement is declared effective, use its reasonable best efforts to make available its employees register or qualify, and personnel cooperate with such Shareholder, the underwriter or underwriters, if any, and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for participation in “road shows” offer and sale under the securities or blue sky laws of each state and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs jurisdiction of the businesses of SplitcoUnited States as the Shareholder or managing underwriter or underwriters, if any, requests in writing, to use its best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any Subsidiary, and, and all other acts or things necessary or advisable to enable the disposition in each case, any successor thereto, and the requirements all such jurisdictions of the marketing process) in the marketing of Registrable Securities covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any underwritten offeringjurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(o) promptly prior to Cooperate with such Shareholder and the filing of any document which is to be incorporated by reference into the registration statement managing underwriter or the prospectus (after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, to facilitate the timely preparation and make delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the representatives of Splitcoregistration statement, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of and enable such document and make such changes securities to be in such document concerning denominations and registered in such names as the Participating Holders prior to the filing thereof as counsel for such Participating Holders managing underwriter or underwriters underwriters, if any, may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);request; and
(p) furnish Use its best efforts to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy of cause the securities covered by the registration statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies within the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities. At all times after an Initial Public Offering, the Company shall file all reports required to be filed by it under the 1933 Act and the 1934 Act and the rules and regulations adopted by the Commission thereunder, and take such further action as any post-effective amendments or supplements thereto, including financial statements and schedulesShareholders may reasonably request, all documents to the extent required to enable such Shareholders to be eligible to sell Registrable Securities pursuant to Rule 144 (or any similar rule then in effect). The Shareholders, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (d) of this Section 5.03, will forthwith discontinue disposition of the securities until the Shareholders' receipt of the copies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 5.03 or until it is advised in writing (the "Advice") by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated therein by referencereference in the prospectus, and, if so directed by the Company, each Shareholder will, or will request the managing underwriter or underwriters, if any, to, deliver, to the Company (at the Company's expense) all copies, other than permanent file copies then in such Shareholder's possession, of the prospectus covering such securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods mentioned in subsections (a), (b) and (n) of this Section 5.03 shall be extended by the number of days during the period from and including any date of the giving of such notice to and including the date when each seller of securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contained in such regcontemplated by subsection (d) of this Section 5.03 hereof or the Advice.
Appears in 5 contracts
Sources: Shareholder Agreement (Credit Suisse/), Shareholders Agreement (Credit Suisse First Boston/), Shareholder Agreement (Heartland Industrial Partners L P)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 4.1, Section 4.2 or use best efforts or reasonable best efforts to accomplish Section 4.3, the same), Splitco shall, Company shall as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(i) prepare and file with the SEC Commission a registration statement to effect such amendmentsregistration in accordance with the intended method or methods of distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article IV; provided, post-however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, the Company will furnish to the 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 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such registration statement or prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Requesting Shareholder(s), their counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with Applicable Law;
(ii) prepare and file with the Commission such amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request the terms of this Article IV, and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement statement;
(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 accordance connection with an Underwritten Offering (including a Block Trade), 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 methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 4.6(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Applicable Law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Shareholders and each underwriter, if any, of the securities covered being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Shareholders and underwriter underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Shareholders;
(Splitco hereby consenting v) use commercially reasonable efforts to register or qualify or cooperate with the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the offering and sale of the Registrable Securities covered by registration or qualification (or exemption from such registration statement or prospectus);
(dqualification) use its reasonable best efforts to register or qualify the of such Registrable Securities covered by such registration statement under such other securities laws or state “blue sky” laws of such jurisdictions as the Selling Shareholders and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by such Selling Shareholders shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Selling Shareholders, except that in no event the Company shall Splitco not for any such purpose be required to to:
(A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), v) be required obligated to be so qualified, to ;
(B) subject itself to taxation in any such jurisdiction or to jurisdiction; or
(C) file a general consent to general service of process in any such jurisdiction;
(evi) promptly notify use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Company Common Stock) to be listed on each Participating Holder securities exchange on which shares of Company Common Stock are then listed;
(vii) use commercially reasonable efforts to provide and each 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;
(viii) enter into such agreements (including an underwriting agreement) in form, scope and substance as is customary in underwritten offerings of Company Common Stock by the Company and use its commercially reasonable 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 underwriterunderwriter(s), if any 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 any underwriting agreement has been entered into, the same shall contain customary indemnification provisions and procedures with respect to all parties to be indemnified pursuant to Section 4.9, 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 underwriter(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;
(ix) in connection with an Underwritten Offering (including a Block Trade), use commercially reasonable efforts to obtain for the underwriter(s) (A) 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 underwriters and (B) “comfort” 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 included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(x) make available for inspection by the Selling Shareholders, 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 such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such Personrepresentative, confirm underwriter, attorney, agent or accountant in connection with such notice registration statement; provided, however, that the Company shall not be required to provide any information under this Section 4.6(a)(x) 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) 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 is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xi) as promptly as practicable notify in writing the Selling Shareholders and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 4.6(a)(viii) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxii) use its commercially reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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, subject to the requirements of Section 4.6(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 this clause (xii) 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, in each case, as promptly as reasonably practicable;
(mxiii) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing 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;
(nxiv) 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
(xv) have appropriate officers of the Company prepare and make presentations at a reasonable number of “road shows” and before analysts and rating agencies, as the case may be, and other information meetings reasonably organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its commercially reasonable best efforts to make available its employees cooperate as reasonably requested by the Selling Shareholders and personnel for participation the underwriters in the offering, marketing or selling of the Registrable Securities; provided, however, that the scheduling of any such “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event meetings shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regundu
Appears in 5 contracts
Sources: Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Amerisourcebergen Corp)
Registration Procedures. If In connection with the obligations of the Company with respect to any Preference Registration Statement pursuant to Sections 2.1 and whenever Splitco is required by 2.6 hereof, the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco Company shall, except as expeditiously as possibleotherwise provided:
(a) prepare and file with At least five days prior to the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case initial filing of a shelf registration, Preference Registration Statement or Prospectus and at least two days prior to the filing of any amendment or supplement thereto (including any document that would be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC incorporated or deemed to be filed therewithincorporated therein by reference), and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Preference Warrant Agent, the Holders participating in and the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will (other than those incorporated or deemed to be incorporated by reference) shall be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)Holders, and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, and cause the officers and directors of the Company, counsel to the Company and independent certified public accountants to the Company to respond to such reasonable inquiries as shall be necessary, in the opinion of counsel to such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act; PROVIDED that the foregoing inspection and information gathering shall be coordinated on behalf of the Holders by MGPE. The Company shall not file any such Preference Registration Statement or related Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Preference Registrable Securities included in such Preference Registration Statement shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to object on a timely basis.
(b) Prepare and file any document with the SEC which such amendments, including post-effective amendments to each Preference Registration Statement as may be necessary to keep such Preference Registration Statement continuously effective for the applicable time period required hereunder; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the view of Splitco or its counsel does not Securities Act; and comply with the requirements provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Preference Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Preference Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Preference Registrable Securities to be sold and the managing underwriters, if any, promptly, and (if requested by any such person) confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment is proposed to be filed, and (B) with respect to a Preference 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 Preference Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC, any state securities commission, any other governmental agency or any court of any stop order suspending the effectiveness of such Preference Registration Statement or of any order or injunction suspending or enjoining the rules of regulations thereunder or contains an untrue statement use of a Prospectus or the effectiveness of a Preference 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 or exemption from qualification of any of the Preference Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event, the existence of any information becoming known that makes any statement made in a Preference Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material fact respect or omits omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements therein, not misleading;, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of or, if issued, obtain the withdrawal of any order enjoining or suspending the effectiveness of the Preference Registration Statement or the use of a Prospectus or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Preference Registrable Securities covered thereby for sale in any jurisdiction described in Section 4(h) at the earliest practicable moment.
(e) If requested by the managing underwriters, if any, or if none, by the Holders of a majority of the Preference Registrable Securities being sold pursuant to such Preference Registration Statement, (i) prepare and file with the SEC such amendments, promptly incorporate in a Prospectus supplement or post-effective amendments and supplements (includingamendment such information as the managing underwriters, without limitationif any, any reports required to or if none, such Holders reasonably believe should be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedincluded therein, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to make all required filings of such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a Prospectus supplement or such post-effective amendment under the Securities Act as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that the Company shall not be required to take any action pursuant to this Section 4(e) that would in the opinion of counsel for the Company, violate applicable law.
(f) Upon written request to the Company, furnish to each Holder of Preference Registrable Securities to be sold pursuant to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder Registration Statement and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Preference Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested (including those previously furnished or incorporated by reference) as soon as practicable after the filing of such registration statement such number documents with the SEC.
(g) Deliver to each Holder of Preference Registrable Securities to be sold pursuant to a Preference Registration Statement and each managing underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus (including each preliminary prospectus and any summary form of prospectus) and any other prospectus filed under Rule 424 under each amendment or supplement thereto as such Persons may reasonably request; and the Securities Act, Company hereby consents to use of such Prospectus and each free writing prospectus utilized in connection therewith, in amendment or supplement thereto and each case, in all material respects in conformity with the requirements document supplemental thereto by each of the Securities Act or selling Holders of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Preference Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and the underwritersunderwriters or agents, if any, in connection with the offering and sale of the Preference Registrable Securities covered by such registration statement Prospectus and any amendment or prospectus);supplement thereto.
(dh) Prior to any offering of Preference Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Holders of Preference Registrable Securities covered by to be sold, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration statement or qualification) of such Preference Registrable Securities for offer and sale under such other the securities or state “blue sky” Blue Sky laws of such jurisdictions as any sellers of Registrable Securities such Holder or any managing underwriter, if any, shall underwriter reasonably request requests in writing, ; keep each such registration or qualification (or exemption therefrom) effective during the period such Preference Registration Statement is required to be kept effective hereunder and do any and all other acts and or things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)of the Preference Registrable Securities covered by the applicable Preference Registration Statement; PROVIDED, except HOWEVER, that in no event the Company shall Splitco not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it is not then so qualified or (ii) take any action that would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdiction;jurisdiction where it is not then so subject or to taxation in any jurisdiction where it is not so subject.
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement In connection with any sale or any other Offering Document has been filed transfer of Preference Registrable Securities that will result in such securities no longer being Preference Registrable Securities, cooperate with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) Holders of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Preference Registrable Securities for sale under and the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwritermanaging underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Preference Registrable Securities to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a reasonable number form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Preference Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such Holders may reasonably request at least two business days prior to any sale of copies Preference Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) above, as promptly as practicable prepare a prospectus supplemented supplement or amended amendment, including if appropriate a post-effective amendment to each Preference Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered to the purchasers of such Registrable Securitiesdelivered, such prospectus shall Prospectus 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 made, not misleading;.
(fk) comply Prior to the effective date of a Preference Registration Statement, (i) provide the registrar for the Preference Warrants and continue Preference Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide CUSIP numbers for such securities.
(l) Enter into such agreement (including an underwriting agreement in such form, scope and substance as is customary in underwritten offerings) and take all such other reasonable actions in connection therewith (including those reasonably requested by the managing underwriters, if any, or the Holders of a majority of the Preference Registrable Securities being sold) in order to complyexpedite or facilitate the disposition of such Preference Registrable Securities, and, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Preference Registrable Securities and the underwriter or underwriters, if any, with respect to the business of the Company and the subsidiaries of the Company (including with respect to businesses or assets acquired or to be acquired by any of them), and the Preference Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if any when requested; (ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, addressed to each selling Holder of Preference Registrable Securities and each of the underwriters, if any), covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters; (iii) use their best efforts to obtain customary "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Preference Registration Statement), addressed (where reasonably possible) to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable to the Selling Holders and the underwriters, if any, than those set forth in Section 5 hereof (or such other provisions and procedures acceptable to Holders of a majority of Preference Registrable Securities covered by such Preference Registration Statement and the managing underwriter, if any); and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Preference Registrable Securities being sold and the managing underwriters or underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and evidence compliance with any customary conditions contained in the underwriting agreement or other agreements entered into by the Company.
(m) Make available for inspection by a representative of the selling Holders of Preference Registrable Securities, any underwriter participating in any such disposition of Preference Registrable Securities, if any, and any attorney, consultant or accountant retained by such representative of the selling Holders of Preference Registrable Securities or underwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during the reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company (including with respect to businesses and assets acquired or to be acquired to the extent that such information is available to the Company), and cause the officers, directors, agents and employees of the Company and its subsidiaries of the Company (including with respect to businesses and assets acquired or to be acquired to the extent that such information is available to the Company) to supply all information in each case reasonably requested by any such Inspector in connection with such Preference Registration Statement; PROVIDED, HOWEVER, that such persons shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Persons, 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 U.S. securities laws in connection with the filing of the Preference Registration Statement or the use of any Prospectus), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard such information by such person or (iv) such information becomes available to such person from a source other than the Company and its subsidiaries and such source is not bound by a confidentiality agreement; PROVIDED, FURTHER that the foregoing investigation shall be coordinated on behalf of the selling Holders of Preference Registrable Securities by MGPE.
(n) Comply with all applicable rules rules, regulations and regulations policies of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an securityholders earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
thereunder no later than 60 days after the end of any 12-month period (gor 135 days after the end of any 12-month period if such period is a fiscal year) (i) cause all such commencing at the end of any fiscal quarter in which Preference Registrable Securities covered by such registration statement are sold to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, an underwriter or to underwriters in a firm commitment or reasonable efforts underwritten offering and (ii) if no similar securities are then so listed, not sold to either cause all such Registrable Securities to be listed on a national securities exchange an underwriter or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 5 contracts
Sources: Preference Warrant Registration Rights Agreement (Chase Cheryl A), Preference Warrant Registration Rights Agreement (Chase Arnold L), Preference Warrant Registration Rights Agreement (Darland Trust)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause (a) In connection with the registration of any Registrable Securities under the Securities Act and in connection with any distribution of registered securities pursuant thereto as provided in contemplated by this Agreement (Agreement, or use best efforts or reasonable best efforts any analogous Rule 144A offering pursuant to accomplish the sameSection 5.02(f), Splitco shallthe Company shall as promptly as reasonably practicable, as expeditiously as possiblesubject to the other provisions of this Agreement:
(ai) subject to the provisions of Section 5.01(a), use reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Article V; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch Registration Statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice (but excluding amendments and supplements that do nothing more than name Selling Holders (as defined below) and provide information with respect thereto), Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereofsuch underwriter(s), and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letters from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the underwriterslead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the context of a registered underwritten offering) of the Company, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors; provided that such persons shall reasonably object, provided, that, notwithstanding the foregoing, first agree in no event shall Splitco be required to file any document writing with the SEC which in Company that any information that is reasonably designated by the view Company as confidential at the time of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits delivery shall be kept confidential by such persons subject to state a material fact required to be stated therein or necessary to make any statement therein not misleadingcustomary exceptions;
(iii) at or before any Registration Statement covering the Notes is declared or otherwise becomes effective, qualify the Indenture under the Trust Indenture Act of 1939, as amended, and appoint a new trustee under the Indenture to the extent such qualification requires the appointment of a new trustee thereunder;
(iii) subject to Section 5.02, prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Article V;
(iv) if requested by the lead managing underwriter(s), promptly include in a prospectus supplement or post-effective amendment such registration statement shall information as the lead managing underwriter(s), if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5.03(a)(iv) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cv) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus supplement) and any summary prospectuseach 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting vi) use reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed, and to apply for any necessary “CUSIPs” or analogous codes to identify such securities;
(vii) use reasonable 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;
(viii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement or any Free Writing Prospectus utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional informationprospectus; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (includingprovided, in the case of clause (F), that such “cold comfort” letter, events subsequent to notice need not include the date of nature or details concerning such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterevent;
(kix) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (ix) 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, in each case, as promptly as reasonably practicable;
(mx) provide a CUSIP number for all cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(xi) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (xi) 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;
(nxii) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Indenture and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legend upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offering;under the Registration Statement; and
(oxiii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the filing Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters.
(b) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees that upon receipt of any document which notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(viii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 5.03(a)(viii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 5 contracts
Sources: Investment Agreement (Zuora Inc), Investment Agreement (Zuora Inc), Investment Agreement (Cornerstone OnDemand Inc)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registered Securities pursuant thereto as provided in this Agreement (or use best efforts or reasonable best efforts including any sale referred to accomplish the samein any Take-Down Notice), Splitco shallthe Company shall as promptly as reasonably practicable, as expeditiously as possiblesubject to the other provisions of this Agreement:
(ai) use reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Exhibit A; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch registration statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice, Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereofsuch underwriter(s), and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letter from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the underwriterslead managing underwriter(s), if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required reasonable opportunity to file any document with the SEC which participate in the view preparation of Splitco such Registration Statement and each prospectus (including any prospectus supplement) included or its counsel does not comply with deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the requirements context of a registered underwritten offering) of the Securities Act or of Company, including reasonable access to (including responses to any reasonable inquiries by the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadinglead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors;
(iii) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Exhibit A;
(iii) if requested by the lead managing underwriter(s), promptly include in a prospectus supplement or post-effective amendment such registration statement shall information as the lead managing underwriter(s), if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 4(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus supplement) and any summary prospectuseach 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting v) use reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(vi) use reasonable 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;
(vii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement or any Free Writing Prospectus utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jviii) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (ix) 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, in each case, as promptly as reasonably practicable;
(mix) provide a CUSIP number for all cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(x) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (xi) 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;
(nxi) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legend upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offering;under the Registration Statement; and
(oxii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the filing Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters.
(b) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 4(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees that upon receipt of any document which notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 4(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 4(a)(vii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 4 contracts
Sources: Merger Agreement (Splunk Inc), Voting and Support Agreement (Splunk Inc), Merger Agreement (Cisco Systems, Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2, Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder provided herein (including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such registration statement shall request, and no less than 180 days, (registration); provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the Stockholders who are including Registrable Securities in such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file include any Offering Document information relating to a Stockholder in any such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) to which the Participating Holders or the underwriters, Stockholder (if any, such Registration Statement includes Registrable Securities of such Stockholder) shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event the opinion of the Company, the inclusion of such information is necessary to comply with applicable law. No later than the second business day following the effective date of any Registration Statement, the Company shall Splitco be required to file any document with the SEC which SEC, in accordance with Rule 424(b)(4) under the view of Splitco Securities Act, the final prospectus to be used in connection with sales pursuant to such Registration Statement. The Company shall use its reasonable best efforts to confirm that (i) no Registration Statement or its counsel does not comply Prospectus (nor any amendment or supplement to any Registration Statement or Prospectus) shall, upon filing with the requirements of the Securities Act or of the rules of regulations thereunder or contains an SEC, contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make any statement statements therein (in the case any Prospectus or any amendment or supplement thereto, in light of the circumstances under which they were made) not misleading;misleading and (ii) no issuer free writing prospectus relating to any Registration Statement shall include any information that conflicts with the information in such Registration Statement.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that makes any statement made in accordance with 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its reasonable best efforts to avoid the issuance 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, or, if issued, to obtain the withdrawal or lifting of any such order or suspension as promptly as practicable.
(e) If requested by the managing underwriters, if any, or any of the holders of any Registrable Securities included in a Registration Statement, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such holder may reasonably request in order to permit the intended methods method of disposition distribution of such securities (including information to reflect any transfer by such holder of any Registrable Securities, or of any securities convertible into (or exercisable or exchangeable for) any Registrable Securities, to any other Person that is (or in connection with such transfer, pursuant to Section 12(c), becomes) a Stockholder and to permit the seller sale by such transferee of such Registrable Securities pursuant to such Registration Statement) and make all required filings of such Prospectus supplement or sellers thereof set forth in such registration statementpost-effective amendment as soon as practicable after the Company has received such request; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or underwriter(ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) or issuance of Registrable Securities in book-entry form (not being subject to any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within 10 business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of any selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable such selling holder or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 6(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dSection 6(c)(iii), be required Section 6(c)(iv) or Section 6(c)(v) above, prepare as promptly as practicable a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on any national securities exchange if any other shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such effective dateexchange.
(o) Enter into such agreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Securities, and in such connection, whether or not an underwriting agreement is entered into and maywhether or not the registration is an underwritten registration, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) make such representations and warranties to obtain an opinion from Splitco’s counsel the holders of such Registrable Securities and a “cold comfort” letter the underwriters, if any, with respect to the business of the Company and updates thereof from its subsidiaries, and the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters issuers in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestif true, 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 confirm the same if and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriterwhen requested, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(lii) use its reasonable best efforts to prevent furnish to the issuance or obtain holders of such Registrable Securities and the withdrawal underwriters, if any, opinions and “negative assurance letters” of any order suspending counsel to the effectiveness of Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the registration statementmanaging underwriters, or if any, and counsels to the lifting of any suspension of the qualification of any selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities for sale in any jurisdiction, in and each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (niii) use its reasonable best efforts to make available its employees obtain “comfort” letters and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to updates thereof from the underwriters (taking into account the needs independent registered public accounting firm of the businesses of SplitcoCompany (and, if necessary, any Subsidiary, and, in each case, other independent registered public accounting firms of any successor thereto, and the requirements subsidiary of the marketing process) Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the marketing Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities in any underwritten offering;
(ounless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) promptly prior to and each of 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 or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, such letters to be in customary form and make covering matters of the representatives of Splitcotype customarily covered in “comfort” letters in connection with underwritten offerings, any Subsidiary(iv) if an underwriting agreement is entered into, and, in each case, any successor thereto, reasonably available for discussion of such document the same shall contain indemnification provisions and make such changes in such document concerning the Participating Holders prior procedures substantially to the filing thereof effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as counsel for otherwise agreed by the Stockholders and (v) deliver such Participating Holders or underwriters documents and certificates as may be reasonably request (provided, that, notwithstanding requested by the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement holders of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy majority of the registration statement Registrable Securities being sold, their counsel and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such reg
Appears in 4 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Adeptus Health Inc.), Registration Rights Agreement (Adeptus Health Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco Company shall, as expeditiously as possiblepossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 4.04(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to from the date such registration statement shall request, 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 no less than 180 days, a period of three years in the case of a shelf registration statement (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or state “blue sky” laws of any such filingjurisdiction, Splitco or any free writing prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including provided that the Company shall be under no obligation to make any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to changes suggested by the extent necessary, if at all, to complete the filing or maintain the effectiveness thereofHolders), and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Majority Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such the period as any Participating Holder pursuant to such registration statement shall request set forth in Section 4.04(a) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (and, in connection with any shelf registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of file one or more prospectus supplements covering Registrable Securities and upon the Manager, if any, request of Splitco’s reasonable determination that a post-effective amendment one or more Holders wishing to a registration statement would be appropriateoffer or sell Registrable Securities whether in an underwritten offering or otherwise);
(c) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and ), any other prospectus filed under Rule 424 under the Securities Act, Act and each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco the Company hereby consenting to the use in accordance with all applicable laws law of each such Offering Document 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);
(de) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (de), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(ef) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any other Offering Document free writing prospectus has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement or any amendment thereto, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(fg) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, including maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) 45 days, or ninety (90) 90 days if it is a fiscal year, after the end of such twelve 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) 12 consecutive months beginning with the first day of Splitcothe Company’s first calendar fiscal quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(gh) (ii)(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 Splitco the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (iiB) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 Splitcothe 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(ij) 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 Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters);
(jk) use its reasonable best efforts (i) to obtain an opinion from Splitcothe Company’s counsel and a “cold comfort” comfort letter and updates thereof from the Company’s independent public accountants who have certified Splitcothe Company’s financial statements (and/or any other 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 “cold comfort” comfort letters (including, in the case of such “cold comfort” 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 “cold comfort” 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 Participating Holder upon its request participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(kl) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe 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 Splitco the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter underwriter, participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and to use reasonable best efforts to cause applicable personnel all of the Company’s officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration statement;
(lm) use its reasonable best efforts to prevent the issuance or obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(mn) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(no) use its reasonable 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 of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in marketing the marketing of Registrable Securities in any underwritten offering;
(op) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 the Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading)request;
(pq) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regregistration 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 Participating Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the 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 Participating Holder and make available such documents and records of the Company and its Subsidiaries that they reasonably request (which, in the case of the Participating Holder, may be subject to the execution by the Participating Holder of a customary confid
Appears in 4 contracts
Sources: Stockholders Agreement (Cellectis S.A.), Stockholders Agreement (Calyxt, Inc.), Stockholders Agreement (Calyxt, Inc.)
Registration Procedures. If and Subject to Section 6.1(f), whenever Splitco is required by the provisions of this Agreement Shareholder shall have requested that any Registrable Shares be registered pursuant to effect Section 6.1 or cause Section 6.2, the Company shall use reasonable endeavors to effect, as soon as practicable as provided herein, the registration and sale of any such Registrable Securities under Shares in accordance with the Securities Act as provided intended method or methods of disposition thereof, until the Registration Rights Termination Date. Without limiting the generality of the foregoing, and pursuant thereto, the Company shall, until the Registration Rights Termination Date, cooperate in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco sale of such Registrable Shares and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of Registration Statement with respect to such Registrable Securities in accordance Shares as provided herein, make all required filings with the intended method of disposition thereofFINRA and, which registration form (i) shall be selected by Splitco and (ii) shallif such Registration Statement is not automatically effective upon filing, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts endeavors to cause such registration statement Registration Statement to become be declared effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (promptly as practicable after the filing thereof; provided, however, that as far in advance as reasonably practicable that, before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including free writing prospectuses under Rule 433 under the Securities Act, or before sending each, a response to an SEC comment letter prior to any such filing“Free Writing Prospectus”), Splitco will the Company shall furnish to one counsel for the Holders participating in Shareholder and the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of the Registration Statement and all such other documents proposed to be filed (including exhibits thereto), including, upon the reasonable request of the Shareholder and to the extent reasonably practicable, all exhibits thereto and each document documents that would be incorporated by reference therein or deemed to the extent then required be incorporated by the rules and regulations of the SEC)reference therein, which Registration Statement and documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder the Shareholder and its plan of distribution and otherwise to counsel, at the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and Shareholder’s sole expense. The Company shall not file any Offering Document Registration Statement or Prospectus or any amendments or supplements thereto (including Free Writing Prospectuses) with respect to any registration pursuant to Section 6.1 to which the Participating Holders Shareholder and its counsel or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which unless in the view opinion of Splitco or its counsel does not the Company, such filing is necessary to comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and Registration Statement, the prospectus Prospectus used in connection therewith (including Free Writing Prospectuses) and Exchange Act reports as may be necessary to keep such registration statement continuously Registration Statement effective for a period of (i) with respect to a Registration Statement other than a Shelf Registration Statement, (A) not less than four (4) months, (B) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter(s), a Prospectus is required by law to be delivered in connection with sales of Registrable Shares by an underwriter or dealer or (C) such shorter period as will terminate when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of distribution by the seller or sellers thereof set forth in such Registration Statement (but in any Participating Holder pursuant to such registration statement shall request event not before the expiration of any longer period required under the Securities Act); or (ii) in the case of a Shelf Registration Statement, the period set forth in Section 6.1(d), and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement Registration Statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateRegistration Statement;
(c) furnishfurnish to the Shareholder and the managing underwriter(s), if any, such number of conformed copies, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus included in such registration statement (including each preliminary prospectus and final Prospectus, any summary prospectus) and any other prospectus filed under Rule 424 under the Securities ActFree Writing Prospectus, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, exhibits and other documents, documents filed therewith and such other documents as such seller and underwriter Persons may reasonably request request, including in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco Shares in accordance with the intended method or methods of disposition thereof; and the Company, subject to the penultimate paragraph of this Section 6.4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder Shareholder and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities Registered Shares covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(d) use its reasonable best efforts endeavors to register or qualify the such Registrable Securities covered by such registration statement Shares under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall the Shareholder reasonably request in writing, requests and do any and all other acts and things which that may be reasonably necessary or reasonably advisable to enable the Shareholder to consummate the disposition in such sellers jurisdictions of the Registrable Shares in accordance with the intended method of distribution thereof (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection; (ii) subject itself to taxation in any jurisdiction wherein it is not so subject; or underwriter(iii) take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject);
(e) use its reasonable endeavors to cause all Registrable Shares covered by such Registration Statement to be registered with or approved by such other governmental agencies, authorities and self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the Shareholder or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares in the Registrable Securities United States in such jurisdictions accordance with the intended method of disposition thereof;
(including keeping such registration or qualification in effect for so long as such registration statement remains in effectf) promptly notify the Shareholder and the managing underwriter(s), except that in no event shall Splitco be required to qualify to do business as if any, at any time when a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be Prospectus relating thereto is required to be delivered under the Securities Act of the occurrence of any event or existence of any fact as a result of which the Prospectus (including any information incorporated by reference therein) included in such Registration Statement, as then in effect, 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 upon discovery, prepare and furnish to the Shareholder a reasonable number of copies of a supplement or amendment to such Prospectus, or file any other required document, as may be necessary so qualifiedthat, as thereafter delivered to subject itself any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to taxation state any fact necessary to make the statements therein not misleading in any such jurisdiction or to consent to general service light of process in any such jurisdictionthe circumstances under which they were made;
(eg) promptly notify each Participating Holder the Shareholder, Shareholder’s counsel and each the managing underwriterunderwriter(s) of any underwritten offering, if any andany, if requested by any such Person, confirm such notice in writing: (i) when the registration statement Registration Statement, any pre-effective amendment, the Prospectus or any other Offering Document Prospectus supplement or any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto to such Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings for that purpose; and (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of such securities for offering or sale in any Registrable Securities for sale under jurisdiction, or the securities or state “blue sky” laws institution of any jurisdiction proceedings for any such purposes;
(h) use its reasonable endeavors to cause all such Registrable Shares covered by such registration statement to be listed (after notice of issuance) on NASDAQ or the initiation of any proceeding for such purpose; principal securities exchange or interdealer quotation system on which the Ordinary Shares are then listed or quoted;
(vi) of use its reasonable endeavors to cooperate with the existence of any fact of which Splitco becomes aware which results in Shareholder and the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (vmanaging underwriter(s), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Shares to be sold under the Registration Statement in a reasonable number 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 Shares to be issued in such denominations and registered in such names as the managing underwriter(s), if any, may request in writing or, if not an underwritten offering, in accordance with the instructions of copies the Shareholder, in each case at least two (2) Business Days prior to any sale of Registrable Shares;
(j) enter into such agreements (including underwriting agreements with customary provisions) and take all such other actions as the Shareholder (if such registration is a prospectus supplemented Demand Registration) or amended so thatthe managing underwriter(s), as thereafter delivered if any, reasonably request in order to expedite or facilitate the purchasers disposition 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 misleadingShares;
(fk) make available for inspection by the Shareholder and Shareholder’s counsel, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Shareholder or underwriter(s), all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by the Shareholder or such underwriter(s), attorney, accountant or agent in connection with such Registration Statement; provided, however, that the Shareholder shall, and shall use reasonable endeavors to cause each such underwriter(s), accountant or other agent to (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company; and (ii) minimize the disruption to the Company’s business in connection with the foregoing;
(l) otherwise use reasonable endeavors to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)Registration Statement, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive 12 months beginning with the first day of Splitcothe Company’s first full calendar quarter after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(gm) (i) cause all in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or ceasing trading of any securities included in such Registrable Securities covered by such registration statement Registration Statement for sale in any jurisdiction, use reasonable endeavors to be listed on obtain the principal securities exchange on which similar securities issued by Splitco are then listed (if any), if the listing withdrawal of such Registrable Securities is then permitted under the rules of such exchange, or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities order as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco soon 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsreasonably practicable;
(in) provide and subject to Section 6.5, cause its senior management to be maintained a transfer agent and registrar for all such use reasonable endeavors to support the marketing of the Registrable Securities Shares covered by such registration statement not later than the Registration Statement pursuant to any Demand Registration (including participation in “road shows”), taking into account the Company’s business needs;
(o) obtain one or more comfort letters, addressed to the Shareholder, dated the effective date of such registration statement; (ii) instruct such transfer agent (A) to releaseRegistration Statement and, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations if requested by the sellers Shareholder, dated the date of sale by the Shareholder (and, if such registration includes an underwritten public offering, including any Shelf Underwritten Offering, addressed to each of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreementunderwriter(s) and take such other actions as dated the 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 date of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such closing under the underwriting agreement and mayfor such offering), at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from signed by the independent public accountants who have certified Splitcoissued an audit report on the Company’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, Registration Statement in customary form and covering such matters as are of the type customarily covered by such comfort letters as the Shareholder reasonably requests;
(p) provide legal opinions of the Company’s outside counsel (which counsel and “cold comfort” letters opinions (includingin form, in the case of such “cold comfort” letter, events subsequent to the date of such financial statementsscope and substance) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and the Shareholder’s counsel), addressed to the Participating HoldersShareholder, dated the effective date of such Registration Statement, each amendment and supplement thereto, and, if requested by the Shareholder, dated the date of sale by the Shareholder (and, if such registration includes an underwritten public offering, including any Shelf Underwritten Offering, addressed to each of the managing underwriter(s) and dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each amendment and supplement thereto (including the preliminary Prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature and such other matters as may be reasonably requested by Shareholder counsel (and, if applicable, by the managing underwriter(s)); and
(q) use its reasonable endeavors 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 the Shareholder’s counsel to effect the registration of such Registrable Shares contemplated hereby. Subject to the limitations on the Company’s ability to delay the filing or initial effectiveness of, or suspend the use of, as applicable, a Registration Statement or a Prospectus or Free Writing Prospectus pursuant to Section 6.1(f), the Shareholder agrees that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 6.4(f), the Shareholder shall promptly discontinue its disposition of Registrable Shares pursuant to any Registration Statement until the Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.4(f). If so directed by the Company, the Shareholder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, in the Shareholder’s possession of the Prospectus covering such Registrable Shares at the time of receipt of such notice. In the event that the Company shall give any such notice, the period mentioned in Section 6.4(b), as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when the Shareholder shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6.4(f). In the case of any underwritten offering of Registrable Shares registered under a Demand Registration Statement filed pursuant to Section 6.1(a), or in the case of a Piggyback Registration under Section 6.2, (i) all Registrable Shares or Similar Securities to be included in such offering or registration, as the case may be, shall be subject to the applicable underwriting agreement with customary terms and neither the Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person agrees to sell such Person’s securities on the basis provided therein; and (ii) furnish neither the Shareholder nor any holder of Similar Securities may participate in such offering or registration unless such Person completes and executes all questionnaires, indemnities, underwriting agreements and other documents (other than powers of attorney) reasonably required to each Participating Holder upon its request be executed in connection therewith, and to each underwriter, if any, a copy of provides such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect other information to the registration statement, and, upon receipt of Company or the underwriter(s) as may be reasonably requested to offer or register such confidentiality agreements as Splitco 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 attorney, accountant Person’s Registrable Shares or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Similar Securities, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 case may reasonably request (be; provided, thathowever, notwithstanding that (A) the foregoing, in no event Shareholder shall Splitco not be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish representations or warranties other than those related to counsel for each Participating Holder upon its request title and to each managing underwriterownership of, without charge, upon request, at least one conformed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements power and schedules, all documents incorporated therein by reference, the prospectus contained in such regauth
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Elan Corp PLC), Shareholder Agreement (Alkermes Plc.)
Registration Procedures. If (a) In connection with the Company’s Registration obligations under Sections 2.01, 2.02 and whenever Splitco is required by 2.03, the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect such Registration and to permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofdistribution thereof as expeditiously as reasonably practicable, which registration form and in connection therewith the Company shall:
(i) shall be selected by Splitco prepare the required Registration Statement including all exhibits and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by under the SEC Securities Act to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as before filing a Registration Statement or Prospectus, or any Participating Holder pursuant to such registration statement shall request, and no less than 180 daysamendments or supplements thereto, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will x) furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, and to Participating Holders, copies of reasonably complete drafts of all such documents proposed prepared to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment of such counsel underwriters and such Holders and their respective counsel; and (including any objections to any information pertaining to any Participating Holder and its plan y) except in the case of distribution and otherwise to the extent necessarya Registration under Section 2.03, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document Registration Statement or Prospectus or amendments or supplements thereto to which the Participating Holders Sponsor or the underwriters, if any, shall reasonably objectobject and (z) make such changes in such documents concerning the Holders prior to the filing thereof as such Holders, providedor their counsel, that, notwithstanding the foregoing, in no event shall Splitco be required to may reasonably request;
(ii) prepare and file any document with the SEC which in such pre- and post-effective amendments to such Registration Statement and supplements to the view Prospectus as may be (x) reasonably requested by the Sponsor, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Holder), or (z) necessary to keep such Registration effective for the period of Splitco or its counsel does not time required by this Agreement, and comply with the requirements provisions of the Securities Act applicable securities laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;
(iii) notify the Participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the rules relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (a) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (b) of regulations thereunder any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (c) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (d) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (e) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(iv) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) contains an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus and any statement therein preliminary Prospectus, in light of the circumstances under which they were made) not misleading;
(i) , when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC SEC, and furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such amendmentsRegistration Statement or Prospectus which shall correct such misstatement or omission or effect such compliance;
(v) to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration Statement, the Company shall include in such Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendments and supplements amendment;
(includingvi) use its reasonable best efforts to prevent, without limitationor obtain the withdrawal of, any reports required to stop order or other order suspending the use of any preliminary or final Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment such information as the managing underwriter or underwriters and the Sponsor agree should be filed pursuant included therein relating to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions plan of the Securities Act distribution with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to make all required filings of such sellers of Registrable Securities and the ManagerProspectus supplement, if any, of Splitco’s reasonable determination that a Issuer Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to a registration statement would be appropriateincorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(cviii) furnish, without charge, furnish to each Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the securities covered applicable Registration Statement and any amendment or post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by such registration statement such number of reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Securities ActCompany consents to the use of such Prospectus or any amendment or supplement thereto by such Holder and the underwriters, each free writing prospectus utilized if any, in connection therewith, in each case, in all material respects in conformity with the requirements offering and sale of the Registrable Securities Act covered by such Prospectus or of the rules any amendment or regulations thereunder, supplement thereto) and such other documents, documents as such seller and Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting Holder or underwriter, it being understood that the Company consents to the use in accordance with all applicable laws of each such Offering Document Prospectus or any amendment or supplement thereto 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 Prospectus or prospectus)any amendment or supplement thereto;
(dx) on or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify qualify, and cooperate with the Registrable Securities covered by such registration statement under such other securities Participating Holders, the managing underwriter or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriterunderwriters, if any, shall 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 Participating Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing, writing and do any and all other acts and or things which may be reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 2.01(d) or Section 2.02(b), whichever is applicable, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(xii) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or underwriterthe underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and if applicable, provide the applicable transfer agent with printed certificates for the Registrable Securities which are in such jurisdictions (including keeping such registration or qualification in effect a form eligible for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictiondeposit with The Depository Trust Company;
(exiv) promptly notify each make such representations and warranties to the Participating Holder Holders and each managing underwriterthe underwriters or agents, if any any, in form, substance and scope as are customarily made by issuers in public offerings then being undertaken;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Sponsor or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;
(xvi) obtain for delivery to the Participating Holders and to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company (including, if necessary, local counsel) dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance;
(xvii) in the case of an Underwritten Offering, (a) obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Participating Holders, a cold comfort letter from the Company’s independent certified public accountants or independent auditors (and, if requested by necessary, any such Person, confirm such notice in writing: (i) when other independent certified public accountants or independent auditors of any subsidiary of the registration statement Company or any other Offering Document has been filed with business acquired by the SEC Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement and (b) obtain the required consents from the Company’s independent certified public accountants and, with respect if applicable, independent auditors to include the Offering Documentaccountants’ or auditors’ report, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreementas applicable, relating to the offering shall cease specified financial statements in the Registration Statement and to be true and correct named as an expert in all material respects; and, if the notification relates to an event described in clause Registration Statement;
(v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to xviii) cooperate with each such seller Participating Holder and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to participating in the purchasers disposition of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact Securities and their respective counsel in connection with any filings required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleadingwith FINRA;
(fxix) use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), securities laws and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ixx) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement the applicable Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable SecuritiesRegistration Statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxxi) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily cause all Registrable Securities covered by such opinions the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s securities are then listed or quoted and “cold comfort” letters (including, in on each inter-dealer quotation system on which any of the case of such “cold 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 “cold comfort” letters Company’s securities are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterthen quoted;
(kxxii) deliver promptly to counsel make available upon reasonable notice at reasonable times and for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available reasonable periods for inspection by counsel for each Participating Holderthe Sponsor, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement Registration Statement and by any attorney, accountant or other agent retained by any Participating Holder the Sponsor or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility; provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.05(a)(xxii) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (v) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (w) disclosure of such information, in the opinion of counsel to use such Person, is otherwise required by law, (x) such information is or becomes publicly known other than through a breach of this or any other agreement of which such Person has knowledge, (y) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person; provided that in the case of clauses (v) and (w), the person seeking to make disclosure of such information, to the extent reasonably practicable and permitted by law, provides the Company prior notice and a draft of the proposed disclosure and uses reasonable best efforts to reflect the Company’s comments on such disclosure.
(xxiii) in the case of an Underwritten Offering, cause applicable personnel and representatives the senior executive officers of Splitco the Company to meet with participate in the Inspectors (if so requested) and to supply the information customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such Inspector Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;
(xxiv) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
(xxv) take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with such registration statement;
(l) use its reasonable best efforts to prevent any Registration complies in all material respects with the issuance or obtain Securities Act, is filed in accordance with the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance Act to the underwriters (taking into account extent required thereby, is retained in accordance with the needs of Securities Act to the businesses of Splitco, any Subsidiary, extent required thereby and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document when taken together with the SEC which in the view of Splitco or its counsel contains an related Prospectus, will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriterthe statements therein, without charge, upon request, at least one conformed copy in light 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 regcircumstances under which they
Appears in 4 contracts
Sources: Registration Rights Agreement (IBEX LTD), Registration Rights Agreement (IBEX LTD), Registration Rights Agreement (IBEX Holdings LTD)
Registration Procedures. If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such the time period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (specified below; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or blue sky laws of any such filingjurisdiction, Splitco the Company will furnish to one counsel for the Holders participating in the planned offering registration (selected by ICN, if ICN is participating in such registration, or, if ICN is not participating in such registration, selected by the Participating HoldersInitiating Holder in the case of a registration pursuant to Section 2.1, or selected by the Major Holder, in the case of a registration pursuant to Section 2.2) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)underwriters, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document registration statement or amendment thereto or any prospectus or supplement thereto to which the Participating Holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, object in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingwriting;
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period (which shall not be required to exceed 180 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 Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), and the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco the Company hereby consenting to the use in accordance with all applicable laws law of each such Offering Document registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by each such Participating Holder 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “"blue sky” " laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writingrequest, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions, except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement statement, any pre-effective amendment, the prospectus or any other Offering Document prospectus supplement related thereto or post-effective amendment to the registration statement has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco 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 of any proceeding for such purpose; (v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement, the prospectus related thereto or the information conveyed to any purchaser at the time of sale to such purchaser document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter17 months thereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s the Company's first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchangeexchange (including, or (ii) if no similar securities are then so listedfor this purpose, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a the Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsMarket);
(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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(ih) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as ICN, if ICN is participating in such registration, or, if ICN is not participating in such registration, as the Participating Holders Initiating Holder, in the case of a registration pursuant to Section 2.1, or as the underwriters Major Holder, in the case of a registration pursuant to Section 2.2, shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Securities. The Holders of the Registrable Securities which are to be distributed by any such underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters)underwriters and which are of the type customarily provided to institutional investors in secondary offerings;
(ji) use its reasonable best efforts (i) to obtain an opinion from Splitco’s the Company's counsel and a “"cold comfort” " letter and updates thereof from the Company's independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “"cold comfort” " letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersunderwriter, if any, and to ICN, if ICN is participating in such registration, or, if ICN is not participating in such registration, to the Participating HoldersInitiating Holder, in the case of a registration pursuant to Section 2.1, or to the Major Holder, in the case of a registration pursuant to Section 2.2, and (ii) furnish to each Participating Holder upon its request participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Holder or underwriter;
(kj) deliver promptly to counsel for each Participating Holder participating in the offering and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe 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 memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as Splitco the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holderany seller of such Registrable Securities covered by such registration statement, by counsel for any underwriter 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 Participating Holder such seller or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and to use reasonable best efforts to cause applicable personnel all of the Company's officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector seller, underwriter, accountant or agent in connection with such registration statement;
(lk) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(ml) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to 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 of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(om) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel (selected pursuant to Section 2.4(a)) for each Participating Holder the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company's representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders selling holders prior to the filing thereof as such counsel for such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading)request;
(pn) furnish to counsel for each Participating Holder upon its request ICN, if ICN is participating in such registration, or, if ICN is not participating in such registration, to the Initiating Holder, in the case of a registration pursuant to Section 2.1, or to the Major Holder, in the case of a registration pursuant to Section 2.2, and to each the managing underwriter, without charge, upon requestat least one signed copy, and to each other Holder participating in the offering, without charge, at least one conformed copy photocopy of a 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 and all exhibits (including those incorporated by reference);
(o) cooperate with the selling Holders of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such 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 selling Holders 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) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities; and
(q) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company, the Company will take such action as is necessary to make any such prohibition inapplicable. The Company may require as a condition precedent to the Company's obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request provided that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration. Each Holder of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contained contemplated by paragraph (e) of this Section 2.4 and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such regHolder's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. In the event the Company shall give any such notice, the applicable period mentioned in paragraph (b) of this Section 2.4 shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.4.
Appears in 4 contracts
Sources: Registration Rights Agreement (Ribapharm Inc), Registration Rights Agreement (Ribapharm Inc), Registration Rights Agreement (Ribapharm Inc)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish Section 3.1, including the same)Shelf Registration Statement and a Piggyback Registration, Splitco shall, the Company shall as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(i) prepare and file with the SEC Commission a registration statement to effect such amendmentsregistration in accordance with the intended method or methods of distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article III; provided, post-however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, the Company will furnish to the Investor and the Other Holders (if they are including Company Common Shares in such registration) (“Selling Shareholder”), its 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 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors;
(ii) prepare and file with the Commission such amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to the terms of this Article III or necessary to facilitate the disposition of the Registrable Securities covered by such registration statement shall request and prospectus (including causing the prospectus contained in such registration statement to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act), and comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all securities, including the Registrable Securities Securities, covered by such registration statement statement;
(iii) if requested by the lead managing underwriter(s), if any, or the Investor in accordance 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 the Investor may reasonably request in order to permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 3.4(a)(iii) that are not, based on the advice of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Applicable Law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Shareholder and each underwriter, if any, of the securities covered being sold by the Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documentsdocuments as the Selling Shareholder and underwriter, as such seller and underwriter if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller the Selling Shareholder;
(Splitco hereby consenting v) use commercially reasonable efforts to register or qualify or cooperate with the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and Selling Shareholder, the underwriters, if any, and their respective counsel in connection with the offering and sale of the Registrable Securities covered by registration or qualification (or exemption from such registration statement or prospectus);
(dqualification) use its reasonable best efforts to register or qualify the of such Registrable Securities covered by such registration statement under such other securities laws or state “blue sky” laws of such jurisdictions as the Selling Shareholder and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by the Selling Shareholder shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, the Selling Shareholder and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)owned by the Selling Shareholder, except that in no event the Company shall Splitco not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), v) be required obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction where it would not otherwise be obligated to do so, but for this clause (v), or to (C) file a general consent to general service of process in any such jurisdiction;
(evi) promptly notify use commercially reasonable efforts (including seeking to cure in the Company’s listing or inclusion application any deficiencies cited by the exchange or market) to list or include all Registrable Securities on each Participating Holder securities exchange on which similar securities issued by the Company are then listed or included;
(vii) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the Selling Shareholder to consummate the disposition of such Registrable Securities;
(viii) use commercially reasonable efforts to provide and each 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) use commercially reasonable efforts to prepare and file in a timely manner all documents and reports required by the Exchange Act;
(x) use commercially reasonable efforts to make generally available to its stockholders, as soon as reasonably practicable, earnings statements (which need not be audited) covering at least 12 months that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and use commercially reasonable efforts to take all such other actions reasonably requested by the Investor in connection therewith (including those reasonably requested by the lead managing underwriterunderwriter(s), if any 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 Investor 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 3.9 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Selling Shareholder and (C) deliver such documents and certificates as reasonably requested by the Selling Shareholder, its 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;
(xii) in connection with an Underwritten Offering or otherwise required in connection with the disposition of the Registrable Securities, use commercially reasonable efforts to obtain for the Selling Shareholder and underwriter(s) (A) 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 the Selling Shareholder and underwriters and (B) “comfort” 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 or any successor accounting standard thereto, 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 or incorporated by reference in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xiii) make available for inspection by the Selling Shareholder, 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 the Selling Shareholder or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and instruments of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Personrepresentative, confirm underwriter, attorney, agent or accountant in connection with such registration statement (in each case subject to the Selling Shareholder and/or Inspectors entering into customary confidentiality agreement on terms and conditions reasonably acceptable to the Company as may be reasonably requested by the Company); provided, further, that the Selling Shareholder agrees that it will, upon receipt of a written request to disclose such Records from a court of competent jurisdiction or by another Governmental Authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xiv) as promptly as practicable notify in writingwriting the Selling Shareholder and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 3.4(a)(xi) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin the light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, the Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxv) use its commercially reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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, subject to the requirements of Section 3.4(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 this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction wherein it would not be obligated to do so but for the requirements of this clause (xiii) or (C) file a general consent to service of process in any such jurisdiction, in each case, as promptly as reasonably practicable;
(mxvi) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholder and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing underwriter(s) or the Selling Shareholder 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;
(nxvii) use its cooperate with the Selling Shareholder and each underwriter or agent participating in the disposition of any Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xviii) have appropriate officers of the Company prepare and make presentations at a reasonable best efforts to make available its employees and personnel for participation in number of “road shows” and before analysts and rating agencies, as the case may be, and other marketing efforts information meetings reasonably organized by the underwriters and otherwise provide use commercially reasonable assistance efforts to cooperate as reasonably requested by the Selling Shareholder and the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 4 contracts
Sources: Shareholder Agreement (NXP Semiconductors N.V.), Shareholder Agreement (NXP Semiconductors N.V.), Shareholder Agreements (NXP Semiconductors N.V.)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or use best efforts Section 4, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as reasonably practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include distribution thereof, make all financial statements required filings by the SEC to be filed therewith, Corporation with FINRA and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as reasonably practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC and any documents incorporated by reference therein, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors; and the Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Requisite Participating Holders Holders, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of counsel for the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act applicable law or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingregulation;
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith to the extent not publicly available, and such Exchange Act reports as may be reasonably requested by the Holders or as necessary to keep such Registration Statement continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; provided, that if the Corporation prepares any such amendments, post-effective amendments or supplements to a Registration Statement or Prospectus or any such Exchange Act report, the Holders and their respective counsel shall have a reasonable period of time prior to the filing thereof in which to review and comment thereon, which period shall, in any event, be no less than two (2) Business Days;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose, and (vi) if the Corporation has knowledge of the occurrence of any event that makes any statement made in accordance such Registration Statement or related Prospectus, any amendment or supplement thereto, 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders of the occurrence of such an event and shall not provide additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the Requisite Participating Holders in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit or facilitate the intended methods method of disposition by 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 seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law or regulation;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling Holder, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement Holder, counsel or underwriter); provided, that the Corporation may furnish or make available any such number of documents in electronic format;
(g) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided, that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto in accordance with this Agreement;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, 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 for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, or (ii) take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) Business Days prior to the settlement date with respect to any sale of Registrable Securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary or advisable to enable the seller or sellers of such Registrable Securities or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Securities, except that in no event shall Splitco as may be required to qualify to do business solely as a foreign corporation consequence of the nature of such selling Holder’s business, in any jurisdiction where it would not, but for which case the requirements Corporation will cooperate in all reasonable respects with the granting of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionapprovals;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any and, if requested event contemplated by any such Person, confirm such notice in writing: (iSections 6(c)(ii) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any time the representations and warranties contemplated document incorporated or deemed to be incorporated therein by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus responds to such comments or requests for amendments, 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 made, not misleading and as such Registration Statement responds to such comments or request for amendments, 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;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees and personnel cause all shares of Registrable Securities covered by such Registration Statement to be listed or authorized for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance quotation or trading on a national securities exchange or automated quotation system if shares of the particular class of Registrable Securities are at that time listed, quoted or traded on such exchange or automated quotation system, as the case may be, prior to the underwriters effectiveness of such Registration Statement;
(taking o) in connection with any underwritten offering, enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs Requisite Participating Holders in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Registrable Securities in such underwritten offering, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, with respect to the business of the businesses of SplitcoCorporation and its Subsidiaries, any Subsidiaryand the Registration Statement, andProspectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the selling Holders of such Registrable Securities and the requirements of the marketing process) in the marketing of Registrable Securities in any underwriters for such underwritten offering;
(o) promptly prior , customary opinions and Rule 10b-5 letters of outside counsel to the filing of any document Corporation and updates thereof (which is to counsel and its opinions and letters (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling Holders of Splitcothe Registrable Securities), addressed to each selling Holder and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy Subsidiary of the registration statement and Corporation or of any post-effective amendments or supplements thereto, including business acquired by the Corporation for which financial statements and schedulesfinancial data are, all documents incorporated therein or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling Holder (unless such accountants shall be prohibited from so addressing such letters by referenceapplicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the prospectus contained same shall contain indemnification and/or contribution provisions and procedures substantially to the effect set forth in such regSection 8 with respect to all parties to be indemnified pursuant to said Sectio
Appears in 4 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement, Registration Rights Agreement (Laureate Education, Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form distribution thereof, make all required filings with FINRA and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including any free writing prospectuses under Rule 433 under the Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Demand Party, the Holders of a majority of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement Registration Statement continuously effective for during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all the Registrable Securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus 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 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that Splitco the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may discontinue any registration reasonably request from time to time in connection with the distribution of its securities that cease to be the Registrable Securities; and (ii) provide notice the Company, subject to such sellers the last paragraph of Registrable Securities and the Managerthis Section 4, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dg) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction 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);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or underwriterthe managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the Registrable Securities in such jurisdictions (including keeping such registration intended method or qualification in effect for so long as such registration statement remains in effect)methods thereof, except that in no event shall Splitco as may be required to qualify to do business solely as a foreign corporation consequence of the nature of such selling Holder’s business, in any jurisdiction where it would not, but for which case the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation Company will cooperate in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed all reasonable respects with the SEC andfiling of such Registration Statement and the granting of such approvals, with respect as may be necessary to enable the Offering Document, when the same has become effective; (ii) of any comment letter seller or request by the SEC or state securities authority for amendments or supplements to the registration statement sellers thereof or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriterunderwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement (ii) instruct and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(Am) use its reasonable best efforts to releasecause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which the Common Stock is then listed, on such effective date, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Holders of the such Registrable Securities which are 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 distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered issuers to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestif true, 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 confirm the same if and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriterwhen requested, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(lii) use its reasonable best efforts to prevent furnish to the issuance or obtain selling Holders and the withdrawal underwriters, if any, opinions of any order suspending outside counsel to the effectiveness Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to each of the registration statementunderwriters, or if any, covering the lifting of any suspension of the qualification of any of the Registrable Securities for sale matters customarily covered in any jurisdictionopinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(niii) use its reasonable best efforts to make available its employees obtain “cold comfort” letters and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to updates thereof from the underwriters (taking into account the needs independent certified public accountants of the businesses of SplitcoCompany (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, and the requirements subsidiary of the marketing process) Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the marketing of Registrable Securities Registration Statement) who have certified the financial statements included 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)Registration Statement, and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and addressed to each managing underwriterselling Holder (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and make covering matters of the representatives of Splitcotype customarily covered in “cold comfort” letters in connection with underwritten offerings, any Subsidiary(iv) if an underwriting agreement is entered into, and, in each case, any successor thereto, reasonably available for discussion of such document the same shall contain indemnification provisions and make such changes in such document concerning the Participating Holders prior procedures substantially to the filing thereof effect set forth in Section 5 hereof with respect to all parties to be indemnified pursuant to Section 5 except as counsel for otherwise agreed by the Holders and (v) deliver such Participating documents and certificates as may be reasonably requested by the Demand Party, the Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regmajorit
Appears in 4 contracts
Sources: Registration Rights Agreement (Box Inc), Investment Agreement (Box Inc), Registration Rights Agreement (Coty Inc.)
Registration Procedures. If In connection with the Company’s registration obligations pursuant to Articles II and whenever Splitco is required by III hereof, the provisions of this Agreement Company will use its reasonable efforts to effect or cause such registrations to permit the registration sale of any Registrable Securities under by a Holder in accordance with the Securities Act intended method or methods of disposition thereof, and pursuant thereto the Company will as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, promptly as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement Registration Statement on an appropriate registration form of under 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 Splitco and (ii) shall, in the case of a shelf registration, be Act 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 accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (distribution thereof; provided, however, that as far in advance as reasonably practicable the Company will, before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for each selling Holder and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such the Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference) proposed to be filed (including all exhibits thereto and provide each document incorporated by reference therein to selling Holder, the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the managing underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required and their counsel with a reasonable opportunity to file any document with the SEC which in the view of Splitco comment on such Registration Statement or its counsel does not comply with the requirements of the Securities Act Prospectus or of the rules of regulations thereunder amendments or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingsupplements thereto;
(ib) furnish, at its expense, to the selling Holders and the managing underwriters, if any, such number of conformed copies of the Registration Statement and each amendment thereto, of the Prospectus and each supplement thereto, and of such other documents as the selling Holders reasonably may request from time to time;
(c) prepare and file with the SEC such amendments, any amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary and any supplements to keep such the Prospectus as may be required or appropriate, in the view of the Company and its counsel, by the rules, regulations or instructions applicable to the registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with form used by the provisions of Company or by the Securities Act with respect to keep the sale or other disposition Registration Statement effective until the earlier of (i) such time as all Registrable Securities covered by such registration statement the Registration Statement are disposed of in accordance with the intended methods plan of disposition by the seller or sellers thereof distribution set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease the Registration Statement or supplement to be Registrable Securities; the Prospectus and (ii) provide notice to such sellers the expiration of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateEffectiveness Period;
(cd) furnishpromptly following its actual knowledge thereof, without charge, to each Participating Holder and each underwriter, if any, of notify the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder selling Holders and the managing underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);their counsel:
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement a Registration Statement, Prospectus, Issuer Free Writing Prospectus or any other Offering Document supplement or amendment thereto has been filed with the SEC and, with respect to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; ;
(ii) of any comment letter or request by the SEC or state securities any other governmental authority for amendments or supplements to the registration statement a Registration Statement, Prospectus or the prospectus related thereto Issuer Free Writing Prospectus or for additional information; ;
(iii) of the issuance by the SEC or any other governmental authority of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings for that purpose; ;
(iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding for such purpose; ;
(v) of the existence occurrence of any fact of event which Splitco becomes aware which results makes any statement made in the Offering Document Registration Statement or Prospectus or any Issuer Free Writing Prospectus untrue in any material respect or which requires the information conveyed to making of any purchaser at the time of sale to such purchaser containing an untrue statement of changes in a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreementRegistration Statement, securities sale agreementProspectus, Issuer Free Writing Prospectus or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared documents so that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall it will not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein (in the case of the Registration Statement only) or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; and
(vi) to the extent not covered by Section 5.1(d)(v), of the Company’s reasonable determination that a post-effective amendment to a Registration Statement is necessary;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(je) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementa Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicableat the earliest practicable date;
(mf) provide a CUSIP number for all prior to any public offering of Registrable Securities, not later than register or qualify and cooperate with the effective date of selling Holders, the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make their respective counsel in connection with the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion registration or qualification (or exemption from such registration or qualification) of such document Registrable Securities for offer and make sale under the securities or blue sky laws of such changes jurisdictions within the United States as the selling Holders or the managing underwriters reasonably request in writing and maintain each registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such selling Holders or the underwriters, if any, to consummate any disposition of such Registrable Securities in such document concerning the Participating Holders prior to the filing thereof as counsel for such Participating Holders or underwriters may reasonably request (jurisdiction; provided, thathowever, notwithstanding that the foregoing, in no event shall Splitco Company will not be required to qualify generally to do business in any jurisdiction in which it is not then so qualified or take any action which would subject it to general service of process or material taxation in any jurisdiction in which it is not then so subject;
(g) as promptly as practicable upon the occurrence of any event contemplated by Section 5.1(d)(v) hereof or any determination by the Company contemplated by Section 5.1(d)(vi) hereof, prepare (and furnish, at its expense, to the selling Holders and the managing underwriters, if any, a reasonable number of copies of) a supplement or post-effective amendment to each Registration Statement or a supplement to the related Prospectus (including by means of an Issuer Free Writing Prospectus), or file any other required document with the SEC which so that, in the view case of Splitco Section 5.1(d)(v), the Registration Statement and, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus or its counsel contains Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omits omit to state a any material fact required (in the case of the Registration Statement only) or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in the case of Section 5.1(d)(vi), the post-effective amendment to the Registration Statement is effected in the manner determined necessary by the Company;
(h) in the case of an Underwritten Offering, enter into customary agreements (including an underwriting agreement) and take other actions reasonably necessary to expedite the disposition of the Registrable Securities, and in connection therewith:
(i) use its reasonable efforts to obtain opinions of counsel to the Company (such counsel being reasonably satisfactory to the managing underwriters, if any) and updates thereof covering matters customarily covered in opinions of counsel requested in Underwritten Offerings, addressed to the underwriters;
(ii) use its reasonable efforts to obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company addressed to the underwriters, if any, covering matters customarily covered in “comfort” letters in connection with Underwritten Offerings;
(iii) provide officers’ certificates and other customary closing documents reasonably requested by the managing underwriters; and
(iv) if so requested (pursuant to a notice received prior to the applicable Offering Launch) by the managing underwriters for the Underwritten Offering relating thereto, subject to customary exceptions, agree not to effect any underwritten public sale or distribution of any securities that are the same as, or similar to, the Registrable Securities to be stated therein included in the Underwritten Offering, or necessary any securities convertible into, or exchangeable or exercisable for, any securities of the Company that are the same as, or similar to, the Registrable Securities to be included in the Underwritten Offering, during a period specified by the managing underwriters not to exceed ninety (90) days.
(i) upon reasonable notice and at reasonable times during normal business hours, make available for inspection by a representative of each selling Holder and the managing underwriters, if any, participating in any statement therein not misleadingdisposition of Registrable Securities and attorneys or accountants retained by any selling Holder or any underwriter, customary due diligence information; provided, however, that for the avoidance of doubt any information supplied hereunder is subject to Section 11.2 hereof;
(j) use its reasonable efforts to comply with all applicable rules and regulations of the SEC relating to such registration and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act; provided, that the Company will be deemed to have complied with this Section 5.1(j) if it has satisfied the provisions of Rule 158 under the Securities Act (or any similar rule promulgated under the Securities Act);
(pk) furnish use its reasonable efforts to:
(i) cause all Registrable Common Securities (without regard to counsel for each Participating Holder any proviso in such definition) to be listed on the New York Stock Exchange (or such other national securities exchange on which shares of Common Stock are listed and traded from time to time);
(ii) upon its the reasonable request and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement Holders of Preferred Stock, cause all Registrable Preferred Securities (without regard to any proviso in such definition) to be listed on the New York Stock Exchange (or such other national securities exchange on which shares of Common Stock are listed and traded from time to time); and
(iii) in respect of a listing referred to in the foregoing clause (i) and, if applicable, clause (ii), to maintain such listing;
(l) use its reasonable efforts to procure the cooperation of the Company’s transfer agent or The Depository Trust Company, as applicable, in settling any post-effective amendments offering or supplements theretosale of Registrable Securities; and
(m) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA, including financial statements the retention of a “Qualified Independent Underwriter” (as defined in FINRA Rule 5121(f)(12)) and schedules, all documents incorporated therein by reference, the prospectus contained in such reguse of reasonable best efforts to obtain FINRA’s pre-clearance or pre-approval of the Registration Statement and applicable Prospectus upon filing with the SEC.
Appears in 3 contracts
Sources: Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.), Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.), Registration Rights Agreement (Kennedy-Wilson Holdings, Inc.)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco The Company shall, as expeditiously as possible:
(a) during the period that the Registration Statement is effective, use its reasonable best efforts to prepare and file with the SEC a registration statement on an appropriate registration form of from time to time such amendments and supplements to the SEC for the disposition of such Registrable Securities Registration Statement and Prospectus used in accordance with the intended method of disposition thereof, which registration form connection therewith as may be necessary to (i) shall be selected by Splitco keep such Registration Statement (or a successor Registration Statement filed with respect to such Registrable Securities) effective and (ii) shall, in to comply with the case provisions of a shelf registration, be available for the sale Securities Act with respect to the disposition of the Registrable Securities covered thereby and (ii), not less than once a quarter (subject to Section 3(b)), (x) name as selling securityholders therein any Holder and (y) add Registrable Securities to the Registration Statement as a result of the receipt by any Holder of additional Registrable Securities pursuant to a Settlement or Reclassification, in either case, who provides the selling Holders thereof Company a duly completed and executed Notice and Questionnaire on or prior to the date ten (10) Business Days prior to such registration statement filing; provided that the Company’s obligation under clause (ii) with respect to any quarter shall comply as to form in all material respects be deemed satisfied with no further action of the Company if the Company does not receive a single duly completed and executed Notice and Questionnaire during such quarter; provided further that before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than any reports or other documents filed with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement the Exchange Act), the Company shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will i) furnish to one counsel for the Holders participating in the planned offering (selected sellers of Registrable Securities covered by the Participating Holders) and to one counsel for the Manager, if any, such Registration Statement copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, (ii) fairly and in good faith consider such changes in any such documents prior to or after the filing thereof as the counsel to the Holders of Registrable Securities being sold may reasonably request, and (iii) make such representatives of the Company as shall not file any Offering Document be reasonably requested by the Holders of the Registrable Securities being sold available for discussion of such documents; provided further that, in addition to which the Participating Holders or Notice and Questionnaire, each Holder agrees to deliver such notices, questionnaires and other information as the underwritersCompany may reasonably request in writing, if any, shall reasonably objectto the Company within ten (10) Business Days after such request;
(b) furnish to each Holder of Registrable Securities being registered such number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith, providedincluding any documents incorporated by reference), that, notwithstanding such number of copies of the foregoingProspectus included in such Registration Statement (including each preliminary prospectus and summary prospectus), in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply conformity with the requirements of the Securities Act or Act, and such other documents as such Holder may reasonably request, without charge, in order to facilitate the disposition of the rules Registrable Securities by such Holder (it being understood that, subject to the requirements of regulations thereunder the Securities Act and applicable state securities laws, the Company consents to the use of the Prospectus and any amendment or contains supplement thereto by each Holder in connection with the offering and sale of the Registrable Securities covered by the Registration Statement of which such Prospectus, amendment or supplement is a part);
(c) use its reasonable best efforts to promptly notify each Holder of any such Registrable Securities covered by such Registration Statement, at any time when the Prospectus relating thereto is required to be delivered under the Securities Act, of the Company’s becoming aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement the statements therein not misleading;
(i) prepare and file with misleading in the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions light of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereundercircumstances then existing, and other documentsat the request of any such Holder, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Holder a reasonable number of copies of a prospectus supplemented an amended or amended supplemental 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 misleading in the light of the circumstances under which they were made not misleadingthen existing;
(fd) comply (and continue use its reasonable best efforts to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all list such Registrable Securities covered by such registration statement to be listed on the principal any securities exchange on which similar securities issued by Splitco other Securities of the Company are then listed (if any), if the listing of such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, or and (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide and cause to be maintained a transfer agent and registrar and CUSIP number for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, Registration Statement not later than the effective date of the registration statementRegistration Statement;
(ne) use its reasonable best efforts to make available its employees and personnel notify counsel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing Holders of Registrable Securities included in such Registration Statement, immediately, and confirm the notice in writing: (i) when the Registration Statement, or any underwritten offering;
(o) promptly prior post-effective amendment to the filing Registration Statement, shall have become effective, or any supplement to the prospectus or any amendment to any prospectus shall have been filed; provided, however, that this clause (i) shall not apply to (A) an amendment or supplement relating solely to securities other than the Registrable Securities or (B) an amendment or supplement by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Proxy Statement on Schedule 14A, a Current Report on Form 8-K or a Registration Statement on Form 8-A or any document which is amendments thereto filed with the SEC under the Exchange Act and incorporated or deemed to be incorporated by reference into a Registration Statement or Prospectus; (ii) of the registration statement 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 (after iv) of the initial filing issuance by the SEC of such registration statement), and prior to any stop order suspending the filing effectiveness of the Registration Statement or of any order preventing or suspending the use of any free writing preliminary prospectus, provide copies 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 document purposes;
(f) take every reasonable effort to counsel for each Participating Holder and to each managing underwriterprevent 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 anyany such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(g) use its reasonable best efforts to register and make qualify (unless an exemption from the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available registration or qualification exists) the Registrable Securities for discussion offer and sale under the securities or “Blue Sky” laws of such document and make such changes in such document concerning jurisdictions as shall be reasonably requested by the Participating Holders prior to the filing thereof as counsel for such Participating Holders or underwriters may reasonably request (Holders; provided, thathowever, notwithstanding that the foregoing, Company shall not be required in no event shall Splitco connection therewith or as a condition thereof to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.4(g), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 2.4(g), or (iii) file a general consent to service of process in any document such jurisdictions;
(h) use its reasonable best efforts to cooperate with the SEC which Holders of Registrable Securities covered by the Registration Statement to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Securities to be sold under the Registration Statement, and enable such Securities to be in such denominations and registered in such names as the view Holders may request; and
(i) use its reasonable best efforts to cooperate with each seller of Splitco or its Registrable Securities and their respective counsel contains an untrue statement of a material fact or omits to state a material fact in connection with any filings required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regmade with FINRA.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lineage, Inc.), Registration Rights Agreement (Lineage, Inc.), Registration Rights Agreement (Lineage, Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder provided herein (including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such registration statement shall request, and no less than 180 days, (registration); provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the Sponsor Investors and the Family Investor who are selling Shares under such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities held by the Sponsor Investors and the Family Investor (represented by the Family Representative) who are selling Shares under such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5(e) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 5, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 5(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d5(c)(iii), be required 5(c)(iv), 5(c)(v) or 5(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(n) Use its reasonable best efforts to cause all shares (i) to be offered by the Company in connection with the initial Public Offering to be authorized to be listed on a national securities exchange and (ii) instruct of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such effective dateexchange.
(o) Enter into such agreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters, if any, with respect to the business of the Registrable Securities which are Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the Participating effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Requisite Investors (which, if there are not more than two Qualified Holders, shall mean, for purposes of this sentence, those holders of more than 50% of the shares of Common Stock held by the Investors (including indirect holdings through Holdings)) and (iiv) furnish to each Participating Holder upon its request deliver such documents and to each underwritercertificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters, if any, a copy to evidence the continued validity of the representations and warranties made pursuant to Section 5(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably Make available for inspection by counsel for each Participating Holdera representative of the selling holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpropertie
Appears in 3 contracts
Sources: Registration Rights Agreement (Hca Inc/Tn), Registration Rights Agreement (Marietta Surgical Center, Inc.), Registration Rights Agreement (Hca Inc/Tn)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to use its efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (but not including any Form 8-K, Form 10-Q, proxy statement or before sending a response other similar filing or amendment thereto that would be incorporated or deemed to an SEC comment letter prior be incorporated therein by reference), the Company shall furnish or otherwise make available to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including counsel, and any objections comment letter relating to any information pertaining to any Participating Holder and its plan of distribution and otherwise to such document from the extent necessarySEC, and, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel, provide such counsel and shall not file any Offering Document reasonable opportunity to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which participate in the view preparation of Splitco such Registration Statement and each Prospectus included therein (but not including any Form 8-K, Form 10Q, proxy statement or its counsel does not comply with the requirements of the Securities Act other similar filing or of the rules of regulations thereunder amendment thereto that would be incorporated or contains an untrue statement of a material fact or omits to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading;by reference).
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed (but not including any Form 8-K, Form 10-Q, proxy statement or other similar filing or amendment thereto that would be incorporated or deemed to be incorporated therein by reference, unless a request for registration pursuant to Section 2.1 or 2.2 has been made), 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 Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any underwriting agreement contemplated by Section 2.3(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to Section 2.4(b), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Selling Holder or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.3(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed.
(o) In connection with an underwritten offering, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings, and in connection therewith, (i) make such effective daterepresentations and warranties to the Selling Holders and the managing underwriter(s), any stop transfer order if any, with respect to the certificates with respect to business of the Registrable Securities being soldCompany and its Subsidiaries, and (B) the Registration Statement, Prospectus and documents, if any, incorporated or deemed to furnish certificates without restrictive legends representing ownership of the shares being soldbe incorporated by reference therein, in such denominations requested each case, in form, substance and scope as are customarily made by the sellers of the Registrable Securities or any managing underwriter; and (iii) issuers in the case of any secondary equity offeringunderwritten offerings, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingand, if applicabletrue, an underwriting agreement) confirm the same if and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities when requested, (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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions and negative assurances of counsel to the Company and updates thereof (iwhich counsel, opinions and negative assurance (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions and negative assurances requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, in the case of such “cold comfort” letter, events subsequent same shall contain indemnification provisions and procedures substantially to the date effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of such financial statements) delivered to underwriters a majority of the Registrable Securities being sold in underwritten public offerings, which opinion connection therewith and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and to (v) deliver such customary documents and certificates as may be reasonably requested by the Participating HoldersHolders of a majority of the Registrable Securities being sold in connection therewith, their counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriter(s), if any, a copy to evidence the continued validity of the representations and warranties 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 opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly Upon execution of a customary confidentiality agreement, pursuant to counsel which the Holders agree to use the following information solely for each Participating Holder and to each the purpose of their due diligence review in connection with an offering of securities by the Company, make available for inspection by a representative of the Selling Holders, the managing underwriterunderwriter(s), if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its Subsidiaries, as shall each of the type which would be reasonably necessary to enable them to exercise their included in a reasonable and customary due diligence responsibilityreview in connection with an offering of securities, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Subject to the provisions of Section 2.8(b) hereof, in connection with any Demand Registration that is a “fully underwritten marketed offering”, cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdictioncovered by the Registration Statement (including, in each casewithout limitation, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for by participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to ”) as reasonably requested by the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 underwriters; provided that such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event officers shall Splitco not be required to file take any document action which would unreasonably interfere with the SEC which in normal business operations of the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);Company.
(pr) furnish to counsel for each Participating Holder upon Otherwise use its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regreas
Appears in 3 contracts
Sources: Registration Rights Agreement (Leucadia National Corp), Registration Rights Agreement (Leucadia National Corp), Registration Rights Agreement (Mueller Industries Inc)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 2.1, Section 2.2 or use best efforts or reasonable best efforts to accomplish Section 2.3, the same), Splitco shall, Company shall as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(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 commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article II; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, the Company will furnish to the 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 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such registration statement or prospectus or any amendments or supplements thereto with respect to which the holders of a majority of the Registrable Securities held by the Selling Shareholders, their counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with Law;
(ii) except in the case of a Shelf Registration Statement, prepare and file with the Commission such amendments, including post-effective amendments amendments, and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request the terms of this Article II, and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement statement;
(iii) in accordance the case of a Shelf Registration Statement, prepare and file with the intended methods Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the Securities Act with respect to the disposition of the Registrable Securities subject thereto for a period ending on the date on which all the Registrable Securities held by the seller Demand Shareholders cease to be Registrable Securities;
(iv) if requested by the lead managing underwriter(s), if any, or sellers thereof set forth 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 registration statementinformation 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 Splitco may discontinue the Company shall not be required to take any registration actions under this Section 2.6(a)(iv) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Law;
(cv) furnish, without charge, furnish to each Participating Holder the Selling Shareholders and each underwriter, if any, of the securities covered being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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 or any successor rule) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities ActAct or any successor rule, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Shareholders and underwriter underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Shareholders;
(Splitco hereby consenting vi) use commercially reasonable efforts to register or qualify or cooperate with the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the offering and sale of the Registrable Securities covered by registration or qualification (or exemption from such registration statement or prospectus);
(dqualification) use its reasonable best efforts to register or qualify the of such Registrable Securities covered by such registration statement under such other securities laws or state “blue sky” laws of such jurisdictions as the Selling Shareholders and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by such Selling Shareholders shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Selling Shareholders, except that in no event the Company shall Splitco not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), vi) be required obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to general service of process in any such jurisdiction;
(evii) promptly notify use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Company Common Stock) to be listed on each Participating Holder securities exchange on which shares of Company Common Stock are then listed;
(viii) use commercially reasonable efforts to provide and each 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 of shares of Company Common Stock by the Company and use its commercially reasonable 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 underwriterunderwriter(s), if any 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 any underwriting agreement has been entered into, the same shall contain customary indemnification provisions and procedures with respect to all parties to be indemnified pursuant to Section 2.9, 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 underwriter(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 commercially reasonable efforts to obtain for the underwriter(s) (A) 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 underwriters and (B) “comfort” 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 (as codified in AS 6101), an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, 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 such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such PersonRepresentative, confirm underwriter, attorney, accountant or other agent in connection with such notice registration statement; provided, however, that the Company shall not be required to provide any information under this Section 2.6(a)(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 privilege that was applicable to such information or (B) 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 is sought in a court of competent jurisdiction or by another Governmental Authority, and it is permitted to do so give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xii) as promptly as practicable notify in writing the Selling Shareholders and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or state securities authority any other Governmental Authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.6(a)(ix) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxiii) use its commercially reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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 (xiii) 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, in each case, as promptly as reasonably practicable;
(mxiv) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing 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;
(nxv) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in cooperate with each case, any successor thereto, and the requirements of the marketing process) in the marketing seller of Registrable Securities and each underwriter or agent participating 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 disposition of such registration statement), Registrable Securities and prior to the filing or use of their respective counsel in connection with 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact filings required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regmade with FIN
Appears in 3 contracts
Sources: Registration Rights Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause In connection with the registration obligations of any Registrable Securities the Company under Section 2 hereof or Exhibit A, the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco Company shall, as expeditiously as possible:
(a) prepare Prepare and file as soon as reasonably practicable with the SEC a registration statement Registration Statement or Registration Statements on an Form S-3 or another appropriate registration form of under 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 Splitco and (ii) shall, in the case of a shelf registration, be Act 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 accordance with the requirements intended method or methods of distribution thereof (including the applicable registration form and include all financial statements required by the SEC to be filed therewithSpin Distribution), and Splitco shall use its commercially reasonable best efforts to cause each such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documentany Registration Statement, Prospectus or before sending a response to an SEC comment letter prior to Disclosure Package or any such filingamendments or supplements thereto with the SEC, Splitco will the Company shall furnish to one counsel for the Holders participating in and the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed and within seven (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations 7) days of the SEC), which documents will be subject to the reasonable review and reasonable comment delivery of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to copies in good faith consider reflecting in each such document when so filed with the extent necessarySEC all comments, if at allany, to complete that the filing or maintain the effectiveness thereof), Holders and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, propose; provided, that, notwithstanding that the foregoing, in no event Company shall Splitco not be required to file take any document with actions under this Section 3(a) that are, in the opinion of counsel experienced in such matters, in violation of applicable law. The Company shall promptly provide copies of any written correspondence from the SEC which in with respect to a Prospectus, prospectus supplement, Registration Statement or post-effective amendment to the view of Splitco or its counsel does not comply with Holders and the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;underwriters, if any.
(ib) Subject to its ability to issue a Deferral Notice, prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 such period the applicable Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus supplement, and as any Participating Holder so supplemented to be filed pursuant to such registration statement shall request Rule 424 (or any similar provisions then in force) under the Securities Act; and use its commercially reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement Registration Statement during the applicable Effectiveness Period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and Registration Statement as so amended or such Prospectus as so supplemented.
(iic) provide As promptly as practicable give notice to such sellers of Registrable Securities the Notice Holders and the Managerunderwriters, if any, (i) when any Prospectus, prospectus supplement, Registration Statement, Disclosure Package or 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 been declared effective, (ii) of Splitco’s reasonable any request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the SEC or any other federal or state governmental authority for amendments or supplements to any 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 any 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 proceeding for such purpose, (v) of the occurrence of a Material Event and (vi) of the determination by the Company that a post-effective amendment to a registration statement would Registration Statement will be appropriate;filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(cd) furnishUse its commercially reasonable 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 in which they have been qualified for sale, without chargein either case at the earliest possible moment, and provide prompt notice to each Participating Holder the Notice Holders and each underwriterthe underwriters, if any, of the securities covered withdrawal of any such order.
(e) As promptly as practicable, furnish to each Notice Holder and the underwriters, if any, without charge, at least one conformed copy of the Registration Statement and any amendment thereto, excluding all schedules, exhibits and all documents incorporated or deemed to be incorporated therein by reference (unless requested in writing by such registration statement such number of copies of such registration statementNotice Holder).
(f) During the Effectiveness Period, deliver to each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Notice Holder and the underwriters, if any, in connection with any sale of Registrable Securities pursuant to such Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; to provide a “reasonable number” of copies thereof to the New York Stock Exchange as contemplated by Rule 153 under the Securities Act; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder and the underwriters, if any, in connection with any offering and sale of the Registrable Securities covered by such registration statement Prospectus or prospectus);any amendment or supplement thereto in the manner set forth therein.
(dg) Prior to any public offering of the Registrable Securities pursuant to such Registration Statement, use its commercially reasonable best efforts to register or qualify or cooperate with the Notice Holders and the underwriters, if any, in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” Blue Sky laws of such jurisdictions within the United States as any sellers underwriter or Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with the offer and sale of Registrable Securities pursuant to such registration or any managing underwriter, if any, shall reasonably request in writing, qualification (or exemption therefrom) and do any and all other acts and or things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification the manner set forth in effect for so long as such registration statement remains in effect)the relevant Registration Statement and the related Prospectus; provided, except that in no event shall Splitco the Company will not be required to (i) qualify to do business as a foreign corporation or as a dealer in securities in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualified, qualify but for this Agreement or (ii) take any action that would subject it to subject itself general service of process in suits or to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;where it is not then so subject.
(eh) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: Upon (iA) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any a stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that purpose; (ivwith respect to such Registration Statement under Section 8(d) or 8(e) of the receipt by Splitco Securities Act, (B) the occurrence of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities event or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact (a “Material Event”) as a result of which Splitco becomes aware which results the financial statements included in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRegistration Statement become ineligible for inclusion therein, such prospectus Registration Statement shall not include an contain any 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, or any related 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 made, not misleading;, or (C) the occurrence or existence of any pending corporate development that, in the good faith judgment of the Company makes it necessary or advisable to suspend the availability of such Registration Statement and the related Prospectus for a discrete period of time because not to do so would be detrimental to the Company and its subsidiaries:
(fi) comply Subject to the Deferral Period, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, 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 its commercially reasonable efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders and continue the underwriters, if any, that the availability of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to complysell any Registrable Securities pursuant to such Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company shall use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) or (B) above, as promptly as is practicable, and (y) in the case of clause (C) above, as soon as practicable after, in the good faith judgment of the Company, public disclosure of such pending corporate development would no longer be detrimental to the interests of the Company. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of one or more Registration Statements or any related Prospectuses for a period (the “Deferral Period”) that shall not exceed 30 days in any three-month period or 90 days in any 12-month period.
(i) If requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any underwriter, and any broker-dealers, attorneys and accountants retained by such Notice Holders, and any attorneys or other agents retained by an underwriter or a broker-dealer engaged by such Notice Holders, all relevant financial and other records and pertinent corporate documents and properties of the Company and its subsidiaries, and cause the appropriate officers, directors and employees of the Company and its subsidiaries to make reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representative for the Notice Holders and the underwriters, if any, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided, that such Persons shall first hereby agree with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities (in which case the Company shall be provided notice prior to such disclosure so that it may seek a protective order), (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Registration Statement or the use of any prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such Person or (iv) such information becomes available to any such Person from a source other than the Company and such source is not bound by a confidentiality agreement.
(j) Comply with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement securityholders earning statements (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the 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) for a 12-month period commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of such Registration Statement, which statements shall be made available no later than 45 days after the end of the 12-month period or 90 days if the 12-month period coincides with a fiscal year of the Company.
(gk) (i) Cooperate with each Notice Holder and the underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any), if the listing in such names as such Notice Holder may request in writing at least three Business Days prior to any sale of such Registrable Securities is then permitted under the rules of such exchange, or Securities.
(iil) if no similar securities are then so listed, Use commercially reasonable efforts to either cause all such Registrable Securities to be listed on a national each securities exchange on which securities of the same class and series issued by the Company are then listed, provided that the applicable listing requirements are satisfied.
(m) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. or the New York Stock Exchange, Inc.
(n) With respect to secure designation of all such each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as a Nasdaq National Market “national market system security” within defined in Rule 159A(b) under the meaning of Rule 11Aa2-1 Securities Act) such Free Writing Prospectus or other materials without the prior written consent of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality Holders of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect which Free Writing Prospectuses or other materials shall be subject to the certificates with respect review of counsel to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;Holders.
(io) enter Make all required filings of all Free Writing Prospectuses with the SEC.
(p) Enter into and perform its obligations under such customary agreements (including, if applicable, including an underwriting agreement) 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 6 of the Agreement, and take such other actions as the Participating Holders sellers of a majority of shares of such Registrable Securities, or the underwriters shall underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities.
(it being understood that q) Obtain for delivery to 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, registered and to the Participating Holdersunderwriter or agent, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such an opinion and letter addressed to such underwriter;
(k) deliver promptly to or opinions from counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter participating Company in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regcustomary for
Appears in 3 contracts
Sources: Registration Rights Agreement (Deerfield Capital Corp.), Registration Rights Agreement (Triarc Companies Inc), Registration Rights Agreement (Deerfield Triarc Capital Corp)
Registration Procedures. If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such the time period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (specified below; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or blue sky laws of any such filingjurisdiction, Splitco the Company will furnish to one counsel for the Holders participating in the planned offering registration (selected by AIHL, if AIHL is participating in such registration, or, if AIHL is not participating in such registration, selected by the Participating HoldersInitiating Holder in the case of a registration pursuant to Section 2.1, or selected by the Major Holder, in the case of a registration pursuant to Section 2.2) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)underwriters, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document registration statement or amendment thereto or any prospectus or supplement thereto to which the Participating Holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, object in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingwriting;
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period (which shall not be required to exceed 180 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 Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), and the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco the Company hereby consenting to the use in accordance with all applicable laws law of each such Offering Document registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by each such Participating Holder 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “"blue sky” " laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writingrequest, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions, except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement statement, any pre-effective amendment, the prospectus or any other Offering Document prospectus supplement related thereto or post-effective amendment to the registration statement has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco 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 of any proceeding for such purpose; (v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement, the prospectus related thereto or the information conveyed to any purchaser at the time of sale to such purchaser document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter17 months thereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s the Company's first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal NYSE Arca exchange or such other securities exchange (including, for this purpose, the Nasdaq National Market) (the NYSE Arca exchange or such other securities exchange, the "Exchange") on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsExchange;
(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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(ih) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as AIHL, if AIHL is participating in such registration, or, if AIHL is not participating in such registration, as the Participating Holders Initiating Holder, in the case of a registration pursuant to Section 2.1, or as the underwriters Major Holder, in the case of a registration pursuant to Section 2.2, shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Securities. The Holders of the Registrable Securities which are to be distributed by any such underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters)underwriters and which are of the type customarily provided to institutional investors in secondary offerings;
(ji) use its reasonable best efforts (i) to obtain an opinion from Splitco’s the Company's counsel and a “"cold comfort” " letter and updates thereof from the Company's independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “"cold comfort” " letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersunderwriter, if any, and to AIHL, if AIHL is participating in such registration, or, if AIHL is not participating in such registration, to the Participating HoldersInitiating Holder, in the case of a registration pursuant to Section 2.1, or to the Major Holder, in the case of a registration pursuant to Section 2.2, and (ii) furnish to each Participating Holder upon its request participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Holder or underwriter;
(kj) deliver promptly to counsel for each Participating Holder participating in the offering and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe 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 memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as Splitco the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holderany seller of such Registrable Securities covered by such registration statement, by counsel for any underwriter 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 Participating Holder such seller or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and to use reasonable best efforts to cause applicable personnel all of the Company's officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector seller, underwriter, accountant or agent in connection with such registration statement;
(lk) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(ml) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to 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 of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(om) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel (selected pursuant to Section 2.4(a)) for each Participating Holder the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company's representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders selling holders prior to the filing thereof as such counsel for such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading)request;
(pn) furnish to counsel for each Participating Holder upon its request AIHL, if AIHL is participating in such registration, or, if AIHL is not participating in such registration, to the Initiating Holder, in the case of a registration pursuant to Section 2.1, or to the Major Holder, in the case of a registration pursuant to Section 2.2, and to each the managing underwriter, without charge, upon requestat least one signed copy, and to each other Holder participating in the offering, without charge, at least one conformed copy photocopy of a signed copy, of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedulesschedules included therein; at the request of any Holder participating in the offering, to furnish to such Holder all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(o) cooperate with the selling Holders of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such 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 selling Holders 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) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities; and
(q) take no direct or indirect action prohibited by Regulation M under the Exchange Act. The Company may require as a condition precedent to the Company's obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request provided that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration. Each Holder of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.4 and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. In the event the Company shall give any such notice, the applicable period mentioned in paragraph (b) of this Section 2.4 shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contained in such regcontemplated by paragraph (e) of this Section 2.4.
Appears in 3 contracts
Sources: Registration Rights Agreement (Alleghany Corp /De), Registration Rights Agreement (Darwin Professional Underwriters Inc), Registration Rights Agreement (Darwin Professional Underwriters Inc)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders of a majority of the Registrable Securities covered by such Registration Statement, if their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practical;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such Holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 4(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating selling Holder of Registrable Securities, its counsel and each managing underwriter, if any, of the securities covered by such registration statement without charge, such number of copies as such selling Holder may reasonably request of such registration statementthe Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and supplement thereto (in each case including all exhibits, unless requested in writing by such Holder, counsel or underwriter);
(g) deliver to each selling Holder of Registrable Securities, its counsel, and the prospectus included in such registration statement underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (h) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder and each managing underwriterupon the occurrence of any event contemplated by Section 4(c)(vi) above, if any and, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iin) instruct use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe listed on the NYSE or national securities exchange on which the Common Stock is listed, on such effective date, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company;
(o) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Holders of the such Registrable Securities which are 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 distributed incorporated by any reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters shall be parties to any such underwriting agreement in underwritten offerings, and, if true, confirm the same if and maywhen requested, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the selling Holders of such Registrable Securities opinions of outside counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling Holders of the Registrable Securities), addressed to each selling Holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling Holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the Participating Holders, effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Qualified Holders and (iiv) furnish deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold pursuant to each Participating Holder upon its request such Registration Statement, their counsel and to each underwriterthe managing underwriters, if any, a copy to evidence the continued validity of the representations and warranties made pursuant to Section 4(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such opinion underwriting or similar agreement, or as and letter addressed to such underwriterthe extent required thereunder;
(kp) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holdera representative of the selling Holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling Holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regof
Appears in 3 contracts
Sources: Registration Rights Agreement (US Foods Holding Corp.), Registration Rights Agreement (Us Foods, Inc.), Registration Rights Agreement (US Foods Holding Corp.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (but not including any Form 8-K, Form 10-Q, proxy statement or before sending a response other similar filing or amendment thereto that would be incorporated or deemed to an SEC comment letter prior be incorporated therein by reference), the Company shall furnish or otherwise make available to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including counsel, and any objections comment letter relating to any information pertaining to any Participating Holder and its plan of distribution and otherwise to such document from the extent necessarySEC, and, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel, provide such counsel and shall not file any Offering Document reasonable opportunity to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which participate in the view preparation of Splitco such Registration Statement and each Prospectus included therein (but not including any Form 8-K, Form 10-Q, proxy statement or its counsel does not comply with the requirements of the Securities Act other similar filing or of the rules of regulations thereunder amendment thereto that would be incorporated or contains an untrue statement of a material fact or omits to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading;by reference).
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed (but not including any Form 8-K, Form 10-Q, proxy statement or other similar filing or amendment thereto that would be incorporated or deemed to be incorporated therein by reference, unless a request for registration pursuant to Section 2.1 or 2.2 has been made), 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 Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any underwriting agreement contemplated by Section 2.3(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to Section 2.4(b), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Selling Holder or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.3(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on the Toronto Stock Exchange or another exchange in Canada or elsewhere, if any, on which similar securities issued by the Company are then listed.
(o) In connection with an underwritten offering, if any, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings, and in connection therewith, (i) make such effective daterepresentations and warranties to the Selling Holders and the managing underwriter(s), any stop transfer order if any, with respect to the certificates with respect to business of the Registrable Securities being soldCompany and its Subsidiaries, and (B) the Registration Statement, Prospectus and documents, if any, incorporated or deemed to furnish certificates without restrictive legends representing ownership of the shares being soldbe incorporated by reference therein, in such denominations requested each case, in form, substance and scope as are customarily made by the sellers of the Registrable Securities or any managing underwriter; and (iii) issuers in the case of any secondary equity offeringunderwritten offerings, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingand, if applicabletrue, an underwriting agreement) confirm the same if and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities when requested, (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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions and negative assurances of counsel to the Company and updates thereof (iwhich counsel, opinions and negative assurance (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions and negative assurances requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, in the case of such “cold comfort” letter, events subsequent same shall contain indemnification provisions and procedures substantially to the date effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of such financial statements) delivered to underwriters a majority of the Registrable Securities being sold in underwritten public offerings, which opinion connection therewith and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and to (v) deliver such customary documents and certificates as may be reasonably requested by the Participating HoldersHolders of a majority of the Registrable Securities being sold in connection therewith, their counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriter(s), if any, a copy to evidence the continued validity of the representations and warranties 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 opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly Upon execution of a customary confidentiality agreement, pursuant to counsel which the Holders agree to use the following information solely for each Participating Holder and to each the purpose of their due diligence review in connection with an offering of securities by the Company, make available for inspection by a representative of the Selling Holders, the managing underwriterunderwriter(s), if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its Subsidiaries, as shall each of the type which would be reasonably necessary to enable them to exercise their included in a reasonable and customary due diligence responsibilityreview in connection with an offering of securities, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Subject to the provisions of Section 2.7(b) hereof, in connection with any Demand Registration that is a “fully underwritten marketed offering”, cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdictioncovered by the Registration Statement (including, in each casewithout limitation, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for by participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to ”) as reasonably requested by the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 underwriters; provided that such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event officers shall Splitco not be required to file take any document action which would unreasonably interfere with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regnormal b
Appears in 3 contracts
Sources: Registration Rights Agreement (Golden Queen Mining Co LTD), Registration Rights Agreement (Golden Queen Mining Co LTD), Registration Rights Agreement (Golden Queen Mining Co LTD)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form Obligations of the SEC for Company. Whenever registration of Registrable Securities has been requested or required pursuant to Section 3, Section 4 or Section 5 hereof, the disposition Company shall use its commercially reasonable efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of disposition thereofdistribution thereof as quickly as practicable, which registration form and in connection with any such request, the Company shall:
(i) use its commercially reasonable efforts (taking into account, among other things, accounting and regulatory matters) to, as expeditiously as practicable, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall be selected by Splitco deem appropriate and (ii) shall, in the case of a shelf registration, which form shall be available for the sale of the such Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (effective; provided, however, that as far in advance as reasonably practicable (x) before filing an Offering Document, a Registration Statement or before sending a response to an SEC comment letter prior to Prospectus or any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits amendments or supplements thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required documents incorporated by reference therein), or before using any Free Writing Prospectus, the Company shall provide one firm of legal counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration (“Designated Holders’ Counsel”), any managing underwriter or broker/dealer participating in any disposition of such Registrable Securities pursuant to a Registration Statement and any attorney retained by any such managing underwriter or broker/dealer (each, an “Inspector” and collectively, the “Inspectors”) with an opportunity to review and comment on such Registration Statement and each Prospectus included therein (and each amendment or supplement thereto) and each Free Writing Prospectus to be filed with the Commission, subject to such documents being under the Company’s control, and (y) the Company shall notify the Designated Holders’ Counsel and each seller of Registrable Securities pursuant to such Registration Statement of any stop order issued or threatened by the Exchange ActCommission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered; provided, further, that the Company shall not include any information relating to a Designated Holder in any such Registration Statement or Prospectus or any amendment or supplement thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) to which such registration statement Designated Holder shall object, in writing, on a timely basis, unless, in the opinion of the Company, the inclusion of such information is necessary to comply with applicable law or regulation;
(ii) use its commercially reasonable efforts to, as expeditiously as practicable, prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement continuously Registration Statement effective for the lesser of (x) 120 days (or, in the case of a shelf registration statement, three years from the effective date of the applicable Registration Statement); provided that, if during such three year period as the Company shall no longer be eligible to use a Registration Statement on Form S-3 (or any Participating Holder successor form), the Company shall maintain a shelf registration for a period of two years from the effective date of the applicable registration statement, and (y) such shorter period that will terminate when all Registrable Securities covered by such Registration Statement have been sold pursuant to such registration statement shall request Registration Statement or otherwise no longer constitute Registrable Securities; and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedRegistration Statement;
(iii) as expeditiously as practicable, however, that Splitco may discontinue any registration of its securities that cease furnish to be Registrable Securities; and (ii) provide notice to such sellers each seller of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibitsexhibits thereto), the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectus and Prospectus), any summary prospectus) and any other prospectus Prospectus filed under Rule 424 under the Securities Act, Act and any Free Writing Prospectus as each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)seller;
(div) use its commercially reasonable best efforts to to, as expeditiously as practicable, register or qualify the such Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers seller of Registrable Securities may reasonably request, and continue such registration or qualification in effect in such jurisdiction for as long as permissible pursuant to the laws of such jurisdiction, or for as long as any managing underwritersuch seller requests or until all of such Registrable Securities are sold, if any, shall reasonably request in writingwhichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any such sellers or underwriter, if any, seller to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)seller; provided, except however, that in no event the Company shall Splitco not be required to (x) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualifiedqualify but for this Section 8(a)(iv), to (y) subject itself to taxation in any such jurisdiction or to (z) consent to general service of process in any such jurisdiction;
(ev) promptly as expeditiously as practicable, notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingseller of Registrable Securities: (iA) when the registration statement a Prospectus, any Prospectus supplement, any Free Writing Prospectus, a Registration Statement or any other Offering Document a post-effective amendment to a Registration Statement has been filed with the SEC Commission, and, with respect to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other federal or state securities governmental authority for amendments or supplements to the registration statement a Registration Statement, related Prospectus or the prospectus related thereto Free Writing Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (ivC) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding proceedings for such purpose; and (vD) of the existence of any fact or happening of any event which Splitco becomes aware which results in the Offering Document or the information conveyed to makes any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact in such Registration Statement, related Prospectus or omitting to state a material fact required Free Writing Prospectus or any document incorporated or deemed to be stated incorporated therein by reference untrue or necessary to make which would require the making of any statement therein not misleading; and (vi) if at any time changes in the representations and warranties contemplated by any underwriting agreementRegistration Statement, securities sale agreement, Prospectus or other similar agreement, relating to the offering shall cease to be true and correct Free Writing Prospectus in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so order that, as thereafter delivered to in the purchasers case of such Registrable Securitiesthe Registration Statement, such prospectus shall it will not include an contain any 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, and that in the case of such Prospectus or Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made made, not misleading;
(fvi) comply (and continue use its commercially reasonable efforts to, as expeditiously as practicable, upon the occurrence of any event contemplated by Section 8(a)(v)(D) hereof or, subject to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)Sections 3(a) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)5(c) in accordance with hereof, the Exchange Act)existence of a Valid Business Reason, prepare a supplement or amendment to such Registration Statement, related Prospectus or Free Writing Prospectus and make generally available furnish to its security holders, as soon as reasonably practicable after the effective date each seller of the registration statement (and in any event within forty-five (45) daysRegistrable Securities a reasonable number of copies of such supplement to, or ninety (90) days if it is a fiscal yearamendment of, such Registration Statement, Prospectus or Free Writing Prospectus as may be necessary so that, after delivery to the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any), if the listing purchasers of such Registrable Securities is then permitted under the rules of such exchangeSecurities, or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of the Registration Statement, it will not contain any secondary equity offeringuntrue 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, provide and enter into that in the case of such Prospectus or Free Writing Prospectus, it will not contain any reasonable agreements with untrue statement of a custodian for material fact or omit to state any material fact required to be stated therein or necessary to make the Registrable Securitiesstatements therein, in light of the circumstances under which they were made, not misleading;
(ivii) enter into such and perform customary agreements (includingincluding an underwriting agreement in customary form with the Approved Underwriter or Company Underwriter, if applicableany, an underwriting agreementselected as provided in Section 3, Section 4 or Section 5 hereof, as the case may be) and take such other commercially reasonable actions as the Participating Holders or the underwriters shall are reasonably request required in order to expedite or facilitate the disposition of such Registrable Securities, including making such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters participating in the offering, with respect to the business of the Registrable Securities which are Company, the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions issuers in underwritten offerings, and shall provide all reasonable cooperation, including causing its appropriate officers to attend and participate in “cold comfortroad shows” letters (includingand other information meetings organized by the Approved Underwriter or Company Underwriter, in the case of such “cold comfort” letterif and as applicable, events subsequent and causing counsel to the date of Company to deliver customary legal opinions in connection with any such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterunderwriting agreements;
(kviii) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available at reasonable times 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), Inspector all pertinent financial and other records, pertinent corporate documents and properties of Splitco the Company and its subsidiaries (collectively, the “Records”), ) as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel the Company’s and representatives of Splitco to meet with its subsidiaries’ officers, directors and employees, and the Inspectors (if so requested) and Company’s independent registered public accounting firm, to supply the all information reasonably requested by any such Inspector in connection with such registration statementRegistration Statement. Records that the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors (and the Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall so request) unless (x) the disclosure of such Records is necessary, in the Company’s judgment, to avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction after exhaustion of all appeals therefrom or (z) the information in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made generally available to the public. Each Inspector agrees that it shall, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, promptly give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. In the event that the Company is unsuccessful in preventing the disclosure of such Records, such Inspector agrees that it shall furnish only such portion of those Records that it is advised by counsel is legally required and shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to those Records;
(lix) use its reasonable best efforts if such sale is pursuant to prevent the issuance or an underwritten public offering, obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than “cold comfort” letter dated the effective date of the registration statementRegistration Statement and the date of the closing under the underwriting agreement from the Company’s independent registered public accounting firm in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests;
(nx) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters (taking into account for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the needs date the Registration Statement with respect to such securities becomes effective, an opinion and “negative assurance letter,” dated such date, of counsel representing the businesses Company for the purposes of Splitcosuch registration, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior addressed 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 or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof seller making such request, covering such legal matters with respect to the registration in respect of which such opinion and letter are being given as counsel for the underwriters, if any, and such Participating Holders or underwriters seller may reasonably request and are customarily included in such opinions and letter;
(providedxi) comply with all applicable rules and regulations of the Commission applicable to the Registration Statement, thatand make available to its security holders, notwithstanding as soon as reasonably practicable but no later than fifteen months after the foregoingeffective date of the Registration Statement, an earnings statement covering a period of 12 months beginning after the effective date of the Registration Statement, in no event shall Splitco be required to file a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated under the Securities Act;
(xii) cause any document with the SEC which Registrable Securities included in the view Registration Statement to be listed on each securities exchange on which securities of Splitco or its the same class are then listed, provided that the applicable listing requirements are satisfied;
(xiii) cooperate with each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel contains an untrue statement of a material fact or omits to state a material fact in connection with any filings required to be stated therein or necessary to make any statement therein not misleading)made with FINRA;
(pxiv) furnish cause the Registrable Securities covered by such Registration Statement to counsel for each Participating Holder upon its request and to each managing underwriterbe registered with or approved by such other governmental agencies or authorities, without charge, upon request, at least one conformed copy as may be reasonably necessary by virtue of the business and operations of the Company to enable the seller or sellers of Registrable Securities to consummate the disposition of such Registrable Securities;
(xv) provide a transfer agent and registrar for the Registrable Securities and a CUSIP number for the Registrable Securities;
(xvi) take all other steps reasonably necessary to effect the registration statement of the Registrable Securities contemplated hereby and reasonably cooperate with the holders or underwriters (in the case of an underwritten offering) of such Registrable Securities to facilitate the disposition of such Registrable Securities pursuant thereto;
(xvii) within the deadlines specified by the Securities Act and the rules promulgated thereunder, make all required filings of all Prospectuses and Free Writing Prospectuses with the Commission; and
(xviii) within the deadlines specified by the Securities Act and the rules promulgated thereunder, make all required filing fee payments in respect of any Registration Statement or Prospectus used under this Agreement (and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such regoffering covered thereby).
Appears in 3 contracts
Sources: Registration Rights Agreement (Cott Corp /Cn/), Registration Rights Agreement (Cott Corp /Cn/), Merger Agreement (Cott Corp /Cn/)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 4.1, Section 4.2 or use best efforts or reasonable best efforts to accomplish Section 4.3, the same), Splitco shall, Company shall as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(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 commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article IV; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, the Company will furnish to the 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 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such registration statement or prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Requesting Shareholder(s), their counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with Applicable Law;
(ii) except in the case of a Shelf Registration Statement, prepare and file with the Commission such amendments, including post-effective amendments amendments, and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request the terms of this Article IV, and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement statement;
(iii) in accordance the case of a Shelf Registration Statement, prepare and file with the intended methods Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the Securities Act with respect to the disposition of the Registrable Securities subject thereto for a period ending on the earlier of (x) thirty-six (36) months after the effective date of such Shelf Registration Statement, (y) the date when all restrictive legends on the Registrable Securities have been removed or (z) the date on which all the Registrable Securities held by the seller Demand Shareholders cease to be Registrable Securities;
(iv) if requested by the lead managing underwriter(s), if any, or sellers thereof set forth 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 registration statementinformation 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 Splitco may discontinue the Company shall not be required to take any registration actions under this Section 4.7(a)(iv) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Applicable Law;
(cv) furnish, without charge, furnish to each Participating Holder the Selling Shareholders and each underwriter, if any, of the securities covered being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Shareholders and underwriter underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Shareholders;
(Splitco hereby consenting vi) use commercially reasonable efforts to register or qualify or cooperate with the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the offering and sale of the Registrable Securities covered by registration or qualification (or exemption from such registration statement or prospectus);
(dqualification) use its reasonable best efforts to register or qualify the of such Registrable Securities covered by such registration statement under such other securities laws or state “blue sky” laws of such jurisdictions as the Selling Shareholders and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by such Selling Shareholders shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Selling Shareholders, except that in no event the Company shall Splitco not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), vi) be required obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to general service of process in any such jurisdiction;
(evii) promptly notify use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Company Common Stock) to be listed on each Participating Holder securities exchange on which shares of Company Common Stock are then listed;
(viii) use commercially reasonable efforts to provide and each 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 of Company Common Stock by the Company and use its commercially reasonable 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 underwriterunderwriter(s), if any 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 any underwriting agreement has been entered into, the same shall contain customary indemnification provisions and procedures with respect to all parties to be indemnified pursuant to Section 4.10, 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 underwriter(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 commercially reasonable efforts to obtain for the underwriter(s) (A) 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 underwriters and (B) “comfort” 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 included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, 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 such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such Personrepresentative, confirm underwriter, attorney, agent or accountant in connection with such notice registration statement; provided, however, that the Company shall not be required to provide any information under this Section 4.7(a)(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 privilege that was applicable to such information or (B) 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 is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xii) as promptly as practicable notify in writing the Selling Shareholders and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 4.7(a)(ix) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxiii) use its commercially reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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, subject to the requirements of Section 4.7(a)(vi), 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 (xiii) 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, in each case, as promptly as reasonably practicable;
(mxiv) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing 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;
(nxv) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in cooperate with each case, any successor thereto, and the requirements of the marketing process) in the marketing seller 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regSecu
Appears in 3 contracts
Sources: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders of a majority of the Registrable Securities covered by such Registration Statement (or their counsel) or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(m) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco the Company shall not be required to take any actions under this Section 3(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may discontinue any registration reasonably request from time to time in connection with the distribution of its securities that cease to be the Registrable Securities; and (ii) provide notice the Company, subject to the last paragraph of this Section 3, hereby consents to the use of such sellers Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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 Prospectus and any such amendment or prospectus)supplement thereto;
(dg) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(h) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten business days prior to having to issue the securities;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ej) promptly notify each Participating Holder and each managing underwriterupon the occurrence of any event contemplated by Section 3(c)(vi) above, if any and, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ik) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iil) instruct use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if such Registration is an initial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten business days following the effectiveness of such Registration Statement);
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Securities, and in such connection, whether or not an underwriting agreement is entered into and maywhether or not the registration is an underwritten registration, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel make such representations and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory warranties to the underwriters, if any, and with respect to the Participating Holdersbusiness of the Company and its subsidiaries, and (ii) furnish to each Participating Holder upon its request the Registration Statement, Prospectus and to each underwriterdocuments, if any, a copy of such opinion incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and letter addressed scope as are customarily made by issuers to such underwriter;
underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (kii) deliver promptly use its reasonable best efforts to counsel for each Participating Holder and furnish to each managing underwriterthe underwriters, if any, copies opinions of all correspondence between outside counsel to the SEC Company and Splitcoupdates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, addressed to each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, (iii) use its counsel reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or auditors of any business acquired by the Company for which financial statements and all memoranda relating financial data are, or are required to discussions be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the SEC or its staff same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 4 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the registration statementStockholders and (v) deliver such documents and certificates as may be reasonably requested by the managing underwriters, andif any, upon receipt to evidence the continued validity of the representations and warranties made pursuant to Section 3(m)(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 confidentiality agreements underwriting or similar agreement, or as Splitco may reasonably request, and to the extent required thereunder;
(n) make reasonably available for inspection by counsel for each Participating Holdera representative of the selling Holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling Holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (li) use its reasonable best efforts disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law or applicable legal process or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding proposed disclosure. Without limiting the foregoing, in no event such information shall Splitco be required to file used by such Person as the basis for any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regmarket t
Appears in 3 contracts
Sources: Registration Rights Agreement (Fidelity & Guaranty Life), Registration Rights Agreement (Harbinger Group Inc.), Registration Rights Agreement (Fidelity & Guaranty Life)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause In connection with the registration of any the Registrable Securities under Shares contemplated by this Article VI, the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco Company shall, as expeditiously as possibleuntil the Registration Rights Termination Date, cooperate in the sale of such Registrable Shares and shall:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of Registration Statement with respect to such Registrable Securities in accordance Shares as provided herein, make all required filings with the intended method of disposition thereofFINRA and, which registration form (i) shall be selected by Splitco and (ii) shallif such Registration Statement is not automatically effective upon filing, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become be declared effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (promptly as practicable after the filing thereof; provided, however, that as far in advance as reasonably practicable that, before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including free writing prospectuses under Rule 433 under the Securities Act, or before sending each, a response to an SEC comment letter prior to any such filing“Free Writing Prospectus”), Splitco will the Company shall furnish to one counsel for the Holders participating in Stockholders and the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of the Registration Statement and all such other documents proposed to be filed (including exhibits thereto), including, upon the reasonable request of the Stockholders and to the extent reasonably practicable, all exhibits thereto and each document documents that would be incorporated by reference therein or deemed to the extent then required be incorporated by the rules and regulations of the SEC)reference therein, which Registration Statement and documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder the Stockholders and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and their counsel. The Company shall not file any Offering Document Registration Statement or Prospectus or any amendments or supplements thereto (including Free Writing Prospectuses) with respect to any registration pursuant to Section 6.1 to which the Participating Holders Stockholders and their counsel or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which unless in the view opinion of Splitco or its counsel does not the Company, such filing is necessary to comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable Law;
(ib) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and Registration Statement, the prospectus Prospectus used in connection therewith (including Free Writing Prospectuses) and Exchange Act reports as may be necessary to keep such registration statement continuously Registration Statement effective for such the period as any Participating Holder pursuant to such registration statement shall request set forth in Section 6.1(b), and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement Registration Statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateRegistration Statement;
(c) furnishfurnish to the Stockholders and the managing underwriter(s), if any, such number of conformed copies, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus included in such registration statement (including each preliminary prospectus and final Prospectus, any summary prospectus) and any other prospectus filed under Rule 424 under the Securities ActFree Writing Prospectus, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, exhibits and other documents, documents filed therewith and such other documents as such seller and underwriter Persons may reasonably request request, including in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco Shares in accordance with the intended method or methods of disposition thereof; and the Company, subject to Section 6.1(d), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder Stockholders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities Registered Shares covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(d) use its reasonable best efforts to register or qualify the such Registrable Securities covered by such registration statement Shares under such other securities or state “blue sky” laws Laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall the Stockholders reasonably request in writing, and do any and all other acts and things which that may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, the Stockholders to consummate the disposition in such jurisdictions of the Registrable Securities Shares in such jurisdictions accordance with the intended method of distribution thereof (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except provided that in no event the Company shall Splitco not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualified, to qualify but for this subsection; (ii) subject itself to taxation in any such jurisdiction wherein it is not so subject; or to consent (iii) take any action which would subject it to general service of process in any such jurisdictionjurisdiction wherein it is not so subject);
(e) promptly notify each Participating Holder the Stockholders and each the managing underwriterunderwriter(s), if any, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act of the occurrence of any event or existence of any fact as a result of which the Prospectus (including any information incorporated by reference therein) included in such Registration Statement, as then in effect, contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as promptly as practicable upon discovery, prepare and furnish to the Stockholders a reasonable number of copies of a supplement or amendment to such Prospectus, or file any other required document, as may be necessary so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, 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 the light of the circumstances under which they were made;
(f) notify the Stockholders, Stockholders’ counsel and the managing underwriter(s) of any underwritten offering, if requested by any such Personany, confirm such notice in writing: (i) when the registration statement Registration Statement, any pre-effective amendment, the Prospectus or any other Offering Document Prospectus supplement or any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto to such Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings for that purpose; and (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of such securities for offering or sale in any Registrable Securities for sale under jurisdiction, or the securities or state “blue sky” laws institution of any jurisdiction proceedings for any such purposes;
(g) use its reasonable best efforts to cause all such Registrable Shares covered by such Registration Statement to be listed (after notice of issuance) on NASDAQ or the initiation of any proceeding for such purpose; principal securities exchange or interdealer quotation system on which the Common Stock are then listed or quoted;
(vh) of use its reasonable best efforts to cooperate with the existence of any fact of which Splitco becomes aware which results in Stockholders and the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (vmanaging underwriter(s), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Shares to be sold under the Registration Statement in a reasonable number 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 Shares to be issued in such denominations and registered in such names as the managing underwriter(s), if any, may request in writing or, if not an underwritten offering, in accordance with the instructions of copies the Stockholders in each case at least two (2) Business Days prior to any sale of a prospectus supplemented Registrable Shares;
(i) enter into such agreements (including underwriting agreements with customary provisions) and take all such other actions as the Stockholders or amended so thatthe managing underwriter(s), as thereafter delivered if any, reasonably request in order to expedite or facilitate the purchasers disposition 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 misleadingShares;
(fj) make available upon reasonable notice and during normal business hours for inspection by the Stockholders and Stockholders’ counsel, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Stockholders or underwriter(s), all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by the Stockholders or such underwriter(s), attorney, accountant or agent in connection with such Registration Statement; provided, however, that the Stockholders shall, and shall cause each such underwriter(s), accountant or other agent to, (i) enter into a customary confidentiality agreement or arrangement in form and substance reasonably satisfactory to the Company; and (ii) minimize, to the extent reasonably practicable, the disruption to the Company’s business in connection with the foregoing;
(k) otherwise use reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)Registration Statement, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive 12 months beginning with the first day of Splitcothe Company’s first full calendar quarter after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iiil) in the case event of the issuance of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any stop order suspending the effectiveness of the registration statementa Registration Statement, or the lifting of any suspension of order suspending or preventing the qualification use of any related Prospectus or ceasing trading of the Registrable Securities any securities included in such Registration Statement for sale in any jurisdiction, in each case, use reasonable best efforts to obtain the withdrawal of such order as promptly soon as reasonably practicable;
(m) provide cause its senior management to support the marketing of the Registrable Shares covered by the Registration Statement pursuant to any Registration Statement (including participation in “road shows”); provided, that the Company shall not be obligated to participate in any such “road show” more than one (1) time in any 120 day period; provided, further, that the Company may request a CUSIP number change in the dates of any such “road show” by not more than ten (10) Business Days if the Company determines, in its good faith reasonable judgment, that the initially proposed dates for all Registrable Securitiessuch “road show” would adversely and materially interfere with the performance of senior management’s duties to the Company (and the Stockholders will give reasonable consideration to accommodating any such request);
(n) obtain one or more comfort letters, not later than addressed to the Stockholders, dated the effective date of such Registration Statement and, if requested by the Stockholders, dated the date of sale by the Stockholders (and, if such registration statementincludes an underwritten public offering, addressed to each of the managing underwriter(s) and dated the date of the closing under the underwriting agreement for such offering), signed by the independent public accountants who have issued an audit report on the Company’s financial statements included in such Registration Statement in customary form and covering such matters of the type customarily covered by comfort letters as the Stockholders reasonably requests;
(no) provide legal opinions of the Company’s outside counsel (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and the Stockholders’ counsel), addressed to the Stockholders, dated the effective date of such Registration Statement, each amendment and supplement thereto, and, if requested by the Stockholders, dated the date of sale by the Stockholders (and, if such registration includes an underwritten public offering, addressed to each of the managing underwriter(s) and dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each amendment and supplement thereto (including the preliminary Prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature and such other matters as may be reasonably requested by the Stockholders’ counsel (and, if applicable, by the managing underwriter(s)); and
(p) use its reasonable best efforts to make available its employees take or cause to be taken all other actions, and personnel for participation do and cause to be done all other things, necessary or reasonably advisable in “road shows” the opinion of the Stockholders’ counsel to effect the registration of such Registrable Shares contemplated hereby. In the case of any underwritten offering of Registrable Shares registered under a Registration Statement filed pursuant to Section 6.1(a), (i) all Registrable Shares shall be subject to the applicable underwriting agreement with customary terms and the Stockholders may not participate in such offering or registration unless such Stockholders agrees to sell such Stockholders’ securities on the basis provided therein; and (ii) the Stockholders may not participate in such offering or registration unless such Stockholders complete and execute all questionnaires, indemnities, underwriting agreements and other marketing efforts documents (other than powers of attorney) reasonably required by the managing underwriter(s) to be executed in connection therewith, and otherwise provide reasonable assistance such other information to the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 Company or the prospectus (after the initial filing of underwriter(s) as may be reasonably requested to offer or register such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (Stockholders’ Registrable Shares; provided, thathowever, notwithstanding the foregoing, in that (A) no event Stockholder shall Splitco be required to file make any document with representations or warranties other than, on a several and not joint basis, those related to its title and ownership of, and power and authority to transfer, the SEC which Registrable Shares owned by such Stockholder included therein and as to the accuracy and completeness of statements made in the view applicable Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information about such Stockholder prepared and furnished to the Company or the managing underwriter(s) by such Stockholder pertaining exclusively to such Stockholder and (B) the aggregate amount of Splitco or its counsel contains an untrue statement liability of each Stockholder pursuant to any indemnification obligation thereunder (which, for the avoidance of doubt, shall be on a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein several and not misleading);
(pjoint basis) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy of shall not exceed the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein net proceeds received by reference, the prospectus contained in such regStockholder from such offering.
Appears in 3 contracts
Sources: Stockholders Agreement (Avista Capital Partners GP, LLC), Stockholders Agreement (Angiodynamics Inc), Stockholders Agreement (Angiodynamics Inc)
Registration Procedures. If Subject to the terms and conditions hereof, whenever Splitco is any Common Shares are required by the provisions of to be registered pursuant to this Agreement or were required to be registered pursuant to the MSV Exchange Agreement, SkyTerra shall use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities under (if not previously effected) and the Securities Act as provided in this Agreement (sale or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition distribution of such Registrable Securities Common Shares (if not previously sold or distributed) in accordance with the intended method of disposition thereof, which and pursuant thereto SkyTerra shall as expeditiously as practicable:
(a) promptly prepare and file with the SEC the applicable registration form statement with respect to such Common Shares (i) shall be selected by Splitco and (ii) shallany amendments, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and including any post-effective amendments or supplements to such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC SkyTerra deems to be filed therewith, necessary) and Splitco shall use its commercially reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such comply with the provisions of the Securities Act applicable to it; provided, that before filing a registration statement or prospectus or any amendments or supplements thereto, SkyTerra shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, Motient copies of reasonably complete drafts of all such documents proposed to be filed (filed, including all exhibits thereto and each document documents incorporated by reference therein in the registration statement and, if requested by Motient, the exhibits incorporated by reference so as to the extent then required by the rules provide Motient and regulations of the SEC), which documents will be subject its counsel a reasonable opportunity to the reasonable review and reasonable comment on such documents, and SkyTerra (i) will make such changes and additions thereto as reasonably requested by counsel to Motient prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto and (ii) if Motient is an underwriter or controlling person of such counsel (including any objections SkyTerra, to any information pertaining include therein material relating to any Participating Holder and its Motient or the plan of distribution for the Common Shares registered thereunder, furnished to SkyTerra in writing, which, in the reasonable judgment of Motient, should be included;
(b) furnish to Motient such number of copies of such registration statement, each amendment and otherwise supplement thereto, the prospectus included in such registration statement and such other documents as Motient may reasonably request in order to facilitate the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by disposition of such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, Common Shares registered thereunder; provided, thathowever, notwithstanding that SkyTerra shall have no obligation to furnish copies of a final prospectus if the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view conditions of Splitco or its counsel does not comply with the requirements of Rule 172(c) under the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingare satisfied by SkyTerra;
(ic) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously with respect to such Common Shares registered thereunder effective for such period the applicable time periods as any Participating Holder pursuant specified in Section 1.1 in order to complete the disposition of the Common Shares covered by 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 Registrable Securities Common Shares covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its commercially reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement Common Shares under such other securities or state “blue sky” sky laws of such jurisdictions as any sellers of Registrable Securities Motient (or any managing underwriter, if any, shall other holder whose securities are included in a registration statement on which Common Shares are registered) reasonably request in writing, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, Motient to consummate the disposition of the Registrable Securities in such jurisdictions of the Common Shares owned by Motient (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except provided that in no event SkyTerra shall Splitco not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualifiedqualify but for this subsection, to (ii) subject itself to taxation in any such jurisdiction or to (iii) consent to general service of process in any such jurisdiction);
(e) promptly notify each Participating Holder and each managing underwriterMotient, if at any andtime when a prospectus relating thereto is required to be delivered under the Securities Act, if requested by any such Person, confirm such notice in writing: (i) when the a registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same post-effective amendment has become effective; effective under the Securities Act, (ii) of any comment letter or written request by the SEC or state securities authority for amendments or supplements to the such registration statement or the prospectus related thereto or for additional information; prospectus, (iii) of the issuance by the SEC happening of any stop order suspending event as a result of which the effectiveness of the prospectus included in such registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing contains an untrue statement of a material fact or omitting to state a material omits any fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (whereupon Motient shall immediately cease any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreementoffers, securities sale agreement, sales or other similar agreementdistribution of Common Shares registered thereunder), relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates subject to an event described in clause (v1.3(c), unless Splitco has declared that a Postponement Period exists, Splitco SkyTerra shall promptly prepare and furnish a supplement or amendment to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter used by Motient for the resale of the Common Shares or delivered to the purchasers stockholders of Motient in connection with the distribution of such Registrable SecuritiesCommon Shares, such prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, and (iv) 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 of the Common Shares included in such registration statement for sale or distribution in any jurisdiction;
(f) comply (and continue to comply) with all applicable rules and regulations in the event of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with issuance of any stop order suspending the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date effectiveness of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Shares included in such registration statement for sale or distribution in any jurisdiction, SkyTerra shall satisfy use its commercially reasonable efforts promptly to obtain the provisions withdrawal of Section 11(a) of the Securities Act such order and Rule 158 thereunder;shall prepare and file an amended or supplemented prospectus, if required; and
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 Common Shares not later than the effective date of such registration statement; ;
(iih) instruct use its commercially reasonable efforts to cause such transfer agent (A) Common Shares covered by such registration statement to release, on be registered with or approved by such effective date, any stop transfer order other governmental agencies or authorities as may be necessary to enable Motient to complete the disposition of the Common Shares covered by such registration statement and comply with the provisions of the Securities Act with respect to the certificates disposition of all Common Shares covered by such registration statement during such period in accordance with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership intended methods of the shares being sold, disposition by Motient thereof set forth in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securitiesregistration statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating HolderMotient, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement statement, and by any attorney, accountant or other agent retained by any Participating Holder Motient or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilitySkyTerra, and to use reasonable best efforts to cause applicable personnel SkyTerra’s officers, managers, employees and representatives of Splitco to meet with the Inspectors (if so requested) and independent accountants to supply the all information reasonably requested by any such Inspector SkyTerra, underwriter, attorney, accountant or agent in connection with such registration statement;; and
(lj) use make generally available to its reasonable best efforts to prevent stockholders a consolidated earnings statement (which need not be audited) for the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than 12 months beginning after the effective date of such registration statement as soon as reasonably practicable after the registration statement;
(n) use its reasonable 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 end of the businesses of Splitcosuch period, any Subsidiary, and, in each case, any successor thereto, and which earnings statement shall satisfy the requirements of the marketing processan earning statement under Section 11(a) 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regSecurities Act.
Appears in 3 contracts
Sources: Exchange Agreement (Motient Corp), Registration Rights Agreement (Skyterra Communications Inc), Exchange Agreement (Skyterra Communications Inc)
Registration Procedures. If and whenever Splitco When the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3(a) or use best efforts Section 4, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possiblepossible to the extent applicable:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel and shall not file counsel, including any Offering Document to which comment letter from the Participating Holders or the underwritersSEC, and, if anyrequested by such counsel, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required provide such counsel reasonable opportunity to file any document with the SEC which participate in the view preparation of Splitco or its counsel does not comply with such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the requirements meaning of the Securities Act or of Act, including reasonable access to the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingCompany’s books and records, officers, accountants and other advisors;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its commercially reasonable efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters in connection with the Underwritten Take-Down, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Company may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdiction; provided, except however, that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualified, to qualify but for this Agreement or (ii) take any action that would subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry positions (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall, promptly after the effectiveness of the registration statement or statement, cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document, as thereafter delivered to the purchasers of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct use its commercially reasonable efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective date, any stop transfer order with respect exchange prior to the certificates effectiveness of such Registration Statement;
(n) in connection with respect to the Underwritten Take-Down, enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the then outstanding Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent due diligence review relating to the date Underwritten Take-Down, make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersdisposition of Registrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its subsidiaries, as shall be reasonably necessary and cause the officers, directors and employees of the Company and its subsidiaries to enable them to exercise their supply all information and participate in customary due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information sessions in each case as reasonably requested by any such Inspector representative, underwriter, counsel or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use or, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement or Prospectus under this Agreement); and
(p) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority (“FINRA”), including the use of commercially reasonable efforts to obtain FINRA’s pre-clearance or pre-approval of the Registration Statement and applicable Prospectus upon filing with the SEC. The Company may require each holder of Registrable Securities as to which any registration is being effected to furnish to the Company in writing such information required in connection with such registration statement;
(l) use its reasonable best efforts to prevent regarding such seller and the issuance or obtain the withdrawal distribution of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all such Registrable Securities, including, but not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitcolimited to, updating any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 information contained in such regi
Appears in 3 contracts
Sources: Investor Rights Agreement (Care.com Inc), Investor Rights Agreement (Google Capital 2016, L.P.), Investment Agreement (Care.com Inc)
Registration Procedures. If and whenever Splitco 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 this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof (including a Partner Distribution), and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any registration pursuant to Section 2.1 or 2.2 to which the Participating Holders Holders’ Representative, its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the existence of any fact of which the Company becomes aware that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 2.4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.4(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed.
(o) Enter into such effective dateagreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, sold in such denominations requested connection therewith or by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriter(s), if applicableany, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Selling Holders and the managing underwriter(s), if any, with respect to the business of the Registrable Securities which are Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 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 in connection therewith and the managing underwriter(s) and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the case of underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such “cold comfort” letterunderwriting or similar agreement, events subsequent or as and to the date extent required thereunder.
(p) Upon execution of such financial statements) delivered to underwriters in underwritten public offeringsa customary confidentiality agreement, which opinion and letter shall be dated make available for inspection by a representative of the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to Selling Holders, the underwritersmanaging underwriter(s), if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its Subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdictioncovered by the Registration Statement (including, in each casewithout limitation, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for by participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (”) taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;Company’s business needs.
(or) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regOtherwise us
Appears in 3 contracts
Sources: Registration Rights Agreement (Moneygram International Inc), Registration Rights Agreement (Moneygram International Inc), Registration Rights Agreement (Moneygram International Inc)
Registration Procedures. If In connection with the Company’s obligations hereunder and whenever Splitco is required by subject to the provisions of this Agreement to effect or cause applicable terms and conditions set forth herein, the registration of any Registrable Securities under the Securities Act Company shall as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, promptly as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement Registration Statement on an any appropriate registration form of under the SEC for the disposition of Securities Act with respect to such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco Shares and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective by the SEC as promptly as reasonably practicable; and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (effective; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement, Prospectus or before sending a response preliminary Prospectus or any amendment thereof or supplement thereto (including documents that would be incorporated or deemed to an SEC comment letter prior be incorporated therein by reference), the Company shall furnish or otherwise make available to any the Private Equity Holders of the Registrable Shares covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement (including a Shelf Registration Statement), Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto (including such document that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Offering Document to which the Participating Holders a Private Equity Holder covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare and file with the SEC such amendments, pre- and post-effective amendments to such Registration Statement and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the Securities Act or as necessary to keep such Registration Statement effective for the period of time required by this Agreement, and comply with provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities Shares covered by such registration statement Registration Statement during such period in accordance with the intended method or methods of disposition by the seller or sellers Holders thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateRegistration Statement;
(c) furnish, without charge, furnish to each Participating Holder and each underwriterof Registrable Shares covered by a Registration Statement and, if anyin the event of a Public Offering, the underwriters of the securities covered by such registration statement being offered such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectus Prospectus), any documents incorporated by reference therein and any summary prospectus) and any such other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, documents as such seller and underwriter Holder or underwriters may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such seller Holder or the sale of such securities by such underwriters (Splitco hereby consenting it being understood that, subject to Section 2.4 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use in accordance with all applicable laws of each such Offering Document the Prospectus and any amendment or supplement thereto by each such Participating Holder and the underwriters, if any, underwriters in connection with the offering and sale of the Registrable Securities Shares covered by the Registration Statement of which such registration statement Prospectus, amendment or prospectussupplement is a part); provided, however, that any such document available on the SEC’s ▇▇▇▇▇ database shall satisfy any such obligation;
(d) if applicable, use its reasonable best efforts to register or qualify the such Registrable Securities covered by such registration statement Shares under such other securities or state “blue sky” sky laws of such jurisdictions as any sellers each Holder or, in the case of Registrable Securities a Public Offering, the managing underwriter reasonably requests; use its reasonable best efforts to keep each such registration or any managing underwriter, if any, shall reasonably request qualification (or exemption therefrom) effective during the period in writing, which such Registration Statement is required to be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, each Holder to consummate the disposition of the Registrable Securities Shares owned by such Holder in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)provided, except however, that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it or its subsidiaries would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualified, to subject itself to taxation in any such jurisdiction qualify but for this subparagraph or to (ii) consent to general service of process in any such jurisdiction);
(e) promptly notify each Participating Holder and each managing underwriter, if any of Registrable Shares covered by a Registration Statement and, if requested by any such Personin the case of a Public Offering, confirm such notice in writing: each underwriter (i) when the registration statement a Prospectus or any other Offering Document prospectus supplement or amendment has been filed with the SEC and, with respect respect
to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; , (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC any state securities or other regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of any of the registration statement Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose; , (iii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or related Prospectus or for additional information, (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the Company has reason to believe that the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall ) contemplated by Section 2.6(o) below cease to be true and correct in all material respects; andcorrect, if the notification relates to an event described in clause and (v)) of the happening of any event which makes any statement made in a Registration Statement or related Prospectus untrue or which requires the making of any changes in such Registration Statement, unless Splitco has declared Prospectus or documents incorporated therein by reference so that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall they will not include an contain any 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, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment 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 the light of the circumstances under which they were made made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holdersthe Company’s stockholders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderunder the Securities Act;
(g) (i) cause all in the case of a Public Offering, if requested by the managing underwriter or any Holder participating in such Registrable Securities covered by Public Offering, promptly incorporate in a prospectus supplement or post-effective amendment such registration statement information as the managing underwriter or any Holder reasonably requests to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any)included therein, 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares andincluding, without limiting the generality of the foregoinglimitation, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities Shares being soldsold by such Holder, the purchase price being paid therefor by the underwriters and (B) with respect to furnish certificates without restrictive legends representing ownership any other terms of the shares being sold, in such denominations requested by the sellers underwritten offering of the Registrable Securities or any managing underwriter; and (iii) Shares to be sold in the case of any secondary equity such offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securitiespromptly make all required filings of such prospectus supplement or post-effective amendment;
(ih) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco promptly make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holderany Holder disposing of Registrable Shares pursuant to any Registration Statement, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement any Registration Statement, and by any attorney, accountant or other agent or representative retained by any Participating such Holder or any such underwriter, underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco the Company (collectively, the “Records”), ) as shall be reasonably necessary to enable them to exercise their due diligence responsibilityresponsibility and cause the Company’s officers, directors and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector in connection with such registration statementRegistration Statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (h) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company is in the process of requesting or has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Inspectors requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Inspector 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;
(i) in the case of a Public Offering, furnish to each Holder and underwriter participating in such Public Offering a signed counterpart of (A) an opinion or opinions of counsel to the Company and (B) a comfort letter or comfort letters from the Company’s independent public accountants and the independent public accountants who have audited any other financial statements (including with respect acquired businesses) included or incorporated by reference into the Prospectus, 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 Holders or managing underwriter reasonably requests;
(j) cause the Registrable Shares included in any Registration Statement to be (A) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed prior to the effectiveness of such Registration Statement or (B) authorized to be quoted and/or listed (to the extent applicable) on an automated quotation system if the Registrable Shares so qualify;
(k) provide a transfer agent and registrar for all Registrable Shares registered hereunder and provide a CUSIP number for the Registrable Shares included in any Registration Statement not later than the effective date of such Registration Statement;
(l) cause its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including participation in “road shows”) taking into account the Company’s business needs;
(m) cooperate with counsel to the Holders and, in the case of a Public Offering, each underwriter participating in the disposition of such Registrable Shares in connection with any filings required to be made with FINRA;
(n) during the period when the Prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(o) in the case of a Public Offering, enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as are customary in connection with a Public Offering; and take all such other actions reasonably requested by the Holders of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, and in such connection whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested and (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and
(p) advise each Holder of Registrable Shares covered by a Registration Statement, promptly after it shall receive notice or obtain knowledge thereof of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any stop order suspending or to obtain its withdrawal at the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 earliest possible moment if such stop order should be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regissued.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Focus Financial Partners Inc.), Registration Rights Agreement (Focus Financial Partners Inc.)
Registration Procedures. If and whenever Splitco the Corporation 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 this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable that, a reasonable period of time before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) (i) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with applicable law, or (ii) if any holder of Registrable Securities covered by such Registration Statement reasonably objects, in writing, on a timely basis, to the requirements of the Securities Act information pertaining to such holder (other than any information provided by such holder) set forth in such Registration Statement or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;Prospectus.
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance with 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Coordination Committee, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Coordination Committee may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter);
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(iii), if requested by any such Person6(c)(iv) or 6(c)(vi) above, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement (taking or, if such Registration is an Initial Public Offering, use its best efforts to cause such Registrable Securities to be so listed within ten (10) business days following the effectiveness of such Registration Statement);
(o) Enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the requirements same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of the marketing process) in the marketing of such Registrable Securities in any underwritten offering;
(o) promptly prior opinions of counsel to the filing of any document Corporation and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiaryother independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, andor are required to be, included in each case, any successor thereto, reasonably available for discussion of such document and make such changes the Registration Statement) who have certified the financial statements included in such document concerning Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the Participating Holders prior accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the filing thereof effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel for such Participating Holders or underwriters may reasonably request (providedand the managing underwriters, thatif any, notwithstanding to evidence the foregoing, in no event shall Splitco be required continued validity of the representations and warranties made pursuant to file Section 6(o)(i) above and to evidence compliance with any document with the SEC which customary conditions contained in the view of Splitco underwriting agreement or its counsel contains an untrue statement of a material fact other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or omits similar agreement, or as and to state a material fact the extent required to be stated therein or necessary to make any statement therein not misleading)thereunder;
(p) furnish to counsel make available for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy inspection by a representative of the registration statement and selling holders of Registrable Securities, any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained underwriter participating in any such regdisposition of Registrable Securi
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Laureate Education, Inc.), Registration Rights Agreement (Laureate Education, Inc.)
Registration Procedures. (a) If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts Section 2 hereof, the Company shall effect such registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) and pursuant thereto the Company shall be selected by Splitco and (ii) shall, cooperate in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof securities and such registration statement shall comply shall, as to form in all material respects promptly as practicable:
(i) prepare and file with the requirements of SEC (as promptly as reasonably practicable, but no later than forty-five (45) days after a request for a Demand Registration, subject to the applicable registration form postponement provisions herein) the Demand Registration Statement (including a Prospectus therein and include any supplement thereto and all exhibits and financial statements required by the SEC to be filed therewith) to effect such registration and, subject to the efforts standard herein, cause such Registration Statement to become effective, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documentsuch Registration Statement or any amendments or supplements thereto, or before sending a response provide to an SEC comment letter prior the representative(s) on behalf of the TPG Stockholders included in such Registration Statement (to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected be chosen by the Participating HoldersTPG Stockholders) and to one counsel for the Manager, if anyany managing underwriter(s), copies of reasonably complete drafts of all such documents proposed to be filed (or furnished, including all exhibits thereto and each document documents incorporated by reference therein reference, and the representative(s) and the managing underwriter(s) and their respective counsel shall have the opportunity to review and comment thereon, and the extent then required Company will make such changes and additions thereto as may reasonably be requested by the rules representative(s) and regulations of the SEC)managing underwriter(s) and their respective counsel prior to such filing, which documents will be subject unless the Company reasonably objects to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing changes or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingadditions;
(iii) prepare and file with the SEC such amendments, pre- and post-effective amendments and supplements (includingto a Shelf Registration Statement or Demand Registration Statement, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus Prospectus used in connection therewith or any free writing prospectus (as defined in SEC rules) as may be necessary required by applicable securities laws or reasonably requested by the TPG Stockholder or any managing underwriter(s) to keep maintain the effectiveness of such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions of the Securities Act applicable securities laws with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement during the period in which such Registration Statement is required to be kept effective;
(iii) furnish to each TPG Stockholder of the securities being registered and each managing underwriter without charge, such number of conformed copies of such registration statement, Registration Statement and of each such amendment and supplement thereto (in each case including all exhibitsexhibits other than those which are being incorporated into such Registration Statement by reference and that are publicly available), such number of copies of the prospectus included Prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) Registration Statement and any other prospectus Prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects Act in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, as such seller the TPG Stockholders and underwriter any managing underwriter(s) may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)request;
(div) use its reasonable best efforts to register or qualify the all Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or the TPG Stockholders and any managing underwriterunderwriter(s) may reasonably request; provided, if anyhowever, that the Company shall reasonably request in writing, and do not for any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco purpose be required to qualify generally to do business as a foreign corporation company in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualifiedqualify but for this Section 3, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction, or to be subject to any material tax obligation in any such jurisdiction where it is not then so subject;
(ev) promptly notify each Participating Holder the TPG Stockholders and each any managing underwriter, if underwriter(s) at any and, if requested by any such Person, confirm such notice in writing: (i) time when the registration statement or any other Offering Document has been filed with Company becomes aware that a Prospectus relating thereto is required to be delivered under the SEC andSecurities Act, with respect to of the Offering Document, when the same has become effective; (ii) happening of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact event as a result of which Splitco becomes aware which results the Prospectus included in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing Registration Statement, as then in effect, includes an untrue statement of a material fact or omitting omits to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; and (vi) if at any time misleading in light of the representations and warranties contemplated by any underwriting agreementcircumstances under which they were made, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish without charge to each such seller the TPG Stockholders and each underwriter, if any, any managing underwriter(s) a reasonable number of copies of a prospectus supplemented supplement to or amended an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingmade;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ivi) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement not later than the effective date of such Registration Statement;
(vii) reasonably cooperate with the TPG Stockholders and any managing underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, and enable certificates for such Registrable Securities to be issued for such number of shares and registered in such names as the TPG Stockholders and any managing underwriter(s) may reasonably request;
(viii) list all Registrable Securities covered by such Registration Statement on any securities exchange on which any such class of securities is then listed and cause to be satisfied all requirements and conditions of such securities exchange to the listing of such securities that are reasonably within the control of the Company;
(ix) notify each TPG Stockholder and any managing underwriter(s), promptly after it shall receive notice thereof, of the time when such Registration Statement, or any post-effective amendments to the Registration Statement, shall have become effective;
(x) to make available to each TPG Stockholder whose Registrable Securities are included in such Registration Statement and any managing underwriter(s) as soon as reasonably practicable after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, an executed copy of each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and any item of correspondence received from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement, it being understood that each TPG Stockholder receiving such material from the Company shall and shall cause its representatives to keep such materials confidential. The Company will as soon as reasonably practicable notify the TPG Stockholders and any managing underwriter(s) of the effectiveness of such Registration Statement or any post-effective amendment or the filing of the Prospectus supplement contemplated herein. the Company will as soon as reasonably practicable respond reasonably and completely to any and all comments received from the SEC or the staff of the SEC, with a view towards causing such Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review;
(xi) advise each TPG Stockholder and any managing underwriter(s), promptly after it shall receive notice or obtain knowledge thereof, of (A) the issuance of any stop order, injunction or other order or requirement by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and use all reasonable best efforts to prevent the issuance of any stop order, injunction or other order or requirement or to obtain its withdrawal if such stop order, injunction or other order or requirement should be issued, (B) the suspension of the registration of the subject shares of the Registrable Securities in any state jurisdiction and (C) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension;
(xii) upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company, make available for inspection by one representative on behalf of all TPG Stockholders included in a Registration Statement whose Registrable Securities are included in such registration statement (to be chosen by the TPG Stockholders) and any managing underwriter(s), and any attorney, accountant or other agent retained by any such TPG Stockholder or underwriters, at reasonable times and in a reasonable manner, all pertinent financial and other records and corporate documents of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such TPG Stockholder, sales or placement agent, underwriter, attorney, accountant or agent to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act that is customary for a participant in a securities offering in connection with such registration statement; provided, however, that the foregoing investigation and information gathering shall be coordinated on behalf of such parties by one firm of counsel designated by and on behalf of such parties;
(iixiii) instruct if requested by any TPG Stockholder of Registrable Securities named in such transfer agent (ARegistration Statement or any managing underwriter(s), promptly incorporate in a Prospectus supplement or post-effective amendment such information as such TPG Stockholder or managing underwriter(s) reasonably requests to releasebe included therein, on such effective dateincluding, any stop transfer order with respect to the certificates without limitation, with respect to the Registrable Securities being soldsold by such TPG Stockholder, the purchase price being paid therefor by any underwriters and (B) with respect to furnish certificates without restrictive legends representing ownership any other terms of the shares being sold, in such denominations requested by the sellers an underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xiv) reasonably cooperate with each TPG Stockholder and any managing underwriter; underwriter(s) participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(iiixv) in the case of any secondary equity an underwritten offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(iA) enter into such customary agreements (including, if applicable, including an underwriting agreementagreement in customary form), (B) and take all such other customary actions as the Participating Holders or the underwriters shall managing underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that including, without limitation, causing senior management and other the Holders of Company personnel to reasonably cooperate with the TPG Stockholder(s) whose Registrable Securities which are included in a Registration Statement and the underwriter(s) in connection with performing due diligence) and (C) cause its counsel to be distributed issue opinions of counsel addressed and delivered to the underwriter(s) in form, substance and scope as are customary in underwritten offerings, subject to customary limitations, assumptions and exclusions; provided, however, that such recipients furnish such written representations or acknowledgement as are customarily provided by any underwriters shall be parties to any who receive such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);opinions; and
(jxvi) if requested by the managing underwriter(s) of an underwritten offering, use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel cause to be delivered, upon the pricing of any underwritten offering, and at the time of closing of a sale of Registrable Securities pursuant thereto, “cold comfort” letter and updates thereof letters from the Company’s independent registered public accountants addressed to the underwriter(s) and, with respect to an offering by the TPG Stockholders pursuant to this Agreement, request the delivery of such “comfort” letters at such times addressed to the TPG Stockholders stating that such accountants are independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated within the meaning of the Securities Act and the applicable rules and regulations adopted by reference in such registration statementthe SEC thereunder, in each case, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by such opinions and “cold comfort” letters (including, of the independent registered public accountants delivered in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in connection with primary underwritten public offerings; provided, which opinion and letter shall be dated the dates however, that such opinions and “cold comfort” letters recipients furnish such written representations or acknowledgement as are customarily dated and otherwise reasonably satisfactory required to receive such comfort letters.
(b) Subject to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy last sentence of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”this Section 3(b), as a condition precedent to the obligations of the Company to file any Registration Statement, each TPG Stockholder shall furnish in writing to the Company such information regarding such TPG Stockholder (and any of its Affiliates), the Registrable Securities to be reasonably necessary to enable them to exercise their due diligence responsibility, sold and to use reasonable best efforts to cause applicable personnel and representatives the intended method of Splitco to meet with the Inspectors (if so requested) and to supply the information distribution of such Registrable Securities reasonably requested by any the Company as is reasonably necessary or advisable for inclusion in the Registration Statement relating to such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance offering pursuant to the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding Act. Notwithstanding the foregoing, in no event shall Splitco will any party be required to file disclose to any document with other party any personally identifiable information or personal financial information in respect of any individual, or confidential information of any Person. Each TPG Stockholder agrees by acquisition of the SEC which Registrable Securities that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in the view Section 3(a)(v), such TPG Stockholder shall forthwith discontinue its disposition of Splitco or its counsel contains an untrue statement of a material fact or omits Registrable Securities pursuant to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement relating to such Registrable Securities until such TPG Stockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(a)(v); (ii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (A) of Section 3(a)(xi), such TPG Stockholder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such TPG Stockholder’s receipt of the notice described in clause (C) of Section 3(a)(xi); and (iii) upon receipt of any post-notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such TPG Stockholder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such TPG Stockholder’s receipt of the notice described in clause (C) of Section 3(a)(xi). The length of time that any registration statement is required to remain effective amendments or supplements theretoshall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, including financial statements and schedulesprovided, however, in no event shall any Registration Statement be required to remain effective after the date on which all documents incorporated therein by reference, the prospectus contained in such regRegistrable Securities cease to be Registrable Securities.
Appears in 3 contracts
Sources: Registration Rights Agreement (Assurant Inc), Registration Rights Agreement, Registration Rights Agreement (Assurant Inc)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to use its efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and, upon execution of a customary confidentiality agreement, such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any registration pursuant to Section 2.1 or 2.2 to which the Participating Holders Holders’ Representative, its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.3(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to Section 2.4(b), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Selling Holder or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.3(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed.
(o) Enter into such effective dateagreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, sold in such denominations requested connection therewith or by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriter(s), if applicableany, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Selling Holders and the managing underwriter(s), if any, with respect to the business of the Registrable Securities which are Company and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, in the case of such “cold comfort” letter, events subsequent same shall contain indemnification provisions and procedures substantially to the date effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of such financial statements) delivered to underwriters a majority of the Registrable Securities being sold in underwritten public offerings, which opinion connection therewith and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and to (v) deliver such documents and certificates as may be reasonably requested by the Participating HoldersHolders of a majority of the Registrable Securities being sold in connection therewith, their counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriter(s), if any, a copy to evidence the continued validity of the representations and warranties 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 opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly to counsel Upon execution of a customary confidentiality agreement, make available for each Participating Holder and to each inspection by a representative of the Selling Holders, the managing underwriterunderwriter(s), if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its Subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdictioncovered by the Registration Statement (including, in each casewithout limitation, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for by participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (”) taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regCompany’s business needs.
Appears in 2 contracts
Sources: Registration Rights Agreement (Americredit Corp), Registration Rights Agreement (Leucadia National Corp)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Corporation in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable Law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or to prevent or obtain 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable Law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Corporation may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject to such service but for this Agreement;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in accordance with the intended methods of disposition set forth in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionRegistration Statement;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(vi) above, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance cause all shares of Registrable Securities covered by the Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement (taking or, if such Registration is an initial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten business days following the effectiveness of such Registration Statement);
(o) enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the requirements same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of the marketing process) in the marketing of such Registrable Securities in any underwritten offering;
(o) promptly prior opinions of counsel to the filing of any document Corporation and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiaryother independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, andor are required to be, included in each case, any successor thereto, reasonably available for discussion of such document and make such changes the Registration Statement) who have certified the financial statements included in such document concerning Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the Participating Holders prior accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the filing thereof effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by Purchaser and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel for such Participating Holders or underwriters may reasonably request (providedand the managing underwriters, thatif any, notwithstanding to evidence the foregoing, in no event shall Splitco be required continued validity of the representations and warranties made pursuant to file Section 6(o)(i) above and to evidence compliance with any document with the SEC which customary conditions contained in the view of Splitco underwriting agreement or its counsel contains an untrue statement of a material fact other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or omits similar agreement, or as and to state a material fact the extent required to be stated therein or necessary to make any statement therein not misleading)thereunder;
(p) furnish to counsel make available for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reginspecti
Appears in 2 contracts
Sources: Registration Rights Agreement (Academy Sports & Outdoors, Inc.), Registration Rights Agreement (Academy Sports & Outdoors, Inc.)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Sections 3, 4 or use best efforts 5, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto, the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the Principal Stockholder that hold Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities held by the Principal Stockholder covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable Law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar or successor rule or regulation then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Registration Statement, 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 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 7(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 7(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable Law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Corporation may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 7, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) or issuance of Registrable Securities in book-entry form (not being subject to any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) upon the occurrence of, and its knowledge of, any event contemplated by Section 7(c)(vi), promptly notify each Participating Holder prepare and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed file with the SEC and, with respect a supplement or post-effective amendment to the Offering Document, when the same has become effective; (ii) of any comment letter Registration Statement or request by the SEC or state securities authority for amendments or supplements a supplement to the registration statement related Prospectus or the prospectus related thereto any document incorporated or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct Registration Statement and, if applicable, provide for a custodian for such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementthereto;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance cause all Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement (taking or, if such registration is an Initial Public Offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within one (1) Business Day following the effectiveness of such Registration Statement);
(o) enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities held by the Principal Stockholders that are being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if true, confirm the requirements same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of the marketing process) in the marketing of such Registrable Securities in any underwritten offering;
(o) promptly prior opinions of counsel to the filing of any document Corporation and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates or bring-downs thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy Subsidiary of the registration statement and Corporation or of any post-effective amendments or supplements thereto, including business acquired by the Corporation for which financial statements and schedulesfinancial data are, all documents incorporated therein or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by referenceapplicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with Underwritten Offerings, (iv) if an underwriting agreement is entered into, the prospectus same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 9 with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by each Principal Stockholder and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 7(o)(i) and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such regunderwriting or similar
Appears in 2 contracts
Sources: Registration Rights Agreement (BrightSpring Health Services, Inc.), Registration Rights Agreement (BrightSpring Health Services, Inc.)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Agreement, the Corporation shall use best efforts or reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco and pursuant thereto the Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement on an appropriate registration any 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 Splitco 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 or the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof (including a Partner Distribution), and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and provided herein; provided that no less later than 180 days, (provided, however, that as far in advance as reasonably practicable 10 days before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment comments of such Holders, counsel (including any objections and managing underwriters. With respect to a Demand Registration that covers the Registrable Securities of the BlackRock Members or the Highfields Members, such Sponsor Member and its counsel shall have the opportunity to object to any information pertaining to such Sponsor Member that is contained in such Registration Statement or Prospectus or any Participating Holder and its plan of distribution and otherwise amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) before it is filed with the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)SEC, and Splitco shall the Corporation will make the changes corrections reasonably requested by such counsel and shall not file any Offering Document Sponsor Member prior to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document such filing with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;SEC.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedRegistration Statement, however, that Splitco may discontinue any registration of its securities that cease and as so supplemented to be Registrable Securitiesfiled pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and (ii) provide notice to such sellers provided that any Holder of Registrable Securities and that has been included on a Shelf Registration may request that such Holder’s Registrable Securities be removed from such Registration Statement, in which event the Manager, if any, of Splitco’s reasonable determination that Corporation shall promptly either withdraw such Registration Statement or file a post-effective amendment to a registration statement would be appropriate;such Registration Statement removing such Registrable Securities.
(c) furnishNotify each selling Holder of Registrable Securities, without charge, to each Participating Holder its counsel and each the managing underwriter, if any, promptly, and (if requested by any such Person) confirm such notice in writing:
(i) when a Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective;
(ii) of any notice from the securities covered SEC that there will be a review of a Registration Statement and promptly provide such Holders, their counsel and the managing underwriter, if any, with a copy of any SEC comments received by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized Corporation in connection therewith;
(iii) 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;
(iv) 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;
(v) if at any time the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 2.5(o) cease to be true and correct;
(vi) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and
(vii) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in each casethe 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, in all material respects in conformity with the requirements light of the Securities Act or circumstances under which they were made, not misleading, and that in the case of the rules Prospectus, it will not contain any untrue statement of a material fact or regulations thereunderomit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its commercially reasonable 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.
(e) If requested by the managing underwriter, if any, or any Holder of Registrable Securities being sold in connection with an underwritten offering, promptly include in a prospectus supplement or post-effective amendment such information as the managing underwriter, if any, and other documents, as such seller and underwriter Holders 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 such post-effective amendment as soon as practicable after the Corporation has received such request.
(f) Furnish or make available to each selling Holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least five conformed copies of the Registration Statement, the Prospectus and prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested by such Holder, counsel or underwriter).
(g) Deliver to each selling Holder of Registrable Securities, its counsel and the underwriter, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Corporation, subject to the last paragraph of this Section 2.5 hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers seller or underwriter reasonably requests 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 to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided that the Corporation 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 any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Securities and the managing underwriter, if any, shall reasonably request to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in writingaccordance with the Registration Statement, and do enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter, if any, or Holders may request at least two Business Days prior to any and all sale of Registrable Securities in a firm commitment public offering, but in any other acts and things which such sale, within ten Business Days prior to having to issue the securities.
(j) Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be reasonably required solely as a consequence of the nature of such selling Holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary or advisable to enable such the seller or sellers thereof or the underwriter, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.5(c)(vii), except that in no event shall Splitco be required prepare a supplement or post-effective amendment to qualify the Registration Statement or a supplement to do business as a foreign corporation in the related Prospectus or any jurisdiction where it would not, but for the requirements of this paragraph (d), be required document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its commercially reasonable efforts to cause all shares of Registrable Securities covered by such transfer agent Registration Statement to be authorized to be listed on a national securities exchange.
(Ao) to releaseIn connection with an Underwritten Offering, on enter into such effective dateagreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection:
(i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(it being understood that ii) furnish to the selling Holders of such Registrable Securities opinions of counsel and a negative assurance letter from counsel to the Corporation and updates thereof (which counsel, opinions and letter (in form, scope and substance, in the case of such opinions and such letter) shall be reasonably satisfactory to the selling Holders of such Registrable Securities, the managing underwriter, if any, and counsels to the selling Holders of the Registrable Securities), addressed to each selling Holder of Registrable Securities which are to and each of the underwriters, if any, covering the matters customarily covered in opinions and negative assurance letters requested in underwritten offerings and such other matters as may be distributed reasonably requested by any underwriters shall be parties to any such underwriting agreement Holders, counsel and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jiii) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling Holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, which form and substance shall be acceptable to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy selling Holders of such opinion and letter addressed to such underwriterthe Registrable Securities;
(kiv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 with respect to all parties to be indemnified pursuant to Section 2.7; and
(v) deliver promptly to such documents and certificates as may be reasonably requested by any Holder of Registrable Securities being sold, such Holder’s counsel for each Participating Holder and to each the managing underwriter, if any, copies to evidence the continued validity of all correspondence between the SEC representations and Splitco, its counsel or auditors warranties made pursuant to Section 2.5(o)(i) and all memoranda relating to discussions evidence compliance with the SEC conditions contained in the underwriting agreement or its staff with respect other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, or as and to the registration statement, and, upon receipt of such confidentiality agreements as Splitco may reasonably requestextent required thereunder.
(p) To the extent not prohibited by applicable law, make reasonably available for inspection by counsel for each Participating Holderthe selling Holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling Holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCorporation and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Corporation and its subsidiaries to supply the all information in each case reasonably requested by any such Inspector Holder, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided that if (l1) use its reasonable best efforts the Corporation believes after consultation with counsel for the Corporation, that to prevent do so would cause the issuance Corporation to forfeit an attorney-client privilege that was applicable to such information or obtain (2) if either (x) the withdrawal Corporation has requested and been granted from the SEC confidential treatment of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale such information contained in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which or documents provided supplementally or otherwise or (y) the Corporation reasonably determines in good faith that such records are confidential and so notifies the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy of Persons requesting the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by referencerecords in writing, the prospectus contained in such regCo
Appears in 2 contracts
Sources: Registration Rights Agreement (Pennymac Financial Services, Inc.), Registration Rights Agreement (Pennymac Financial Services, Inc.)
Registration Procedures. If In connection with the obligations of the Company with respect to the Registration Statements pursuant to Sections 2(a) and whenever Splitco is required by 2(b) hereof, the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possibleto:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant time period specified in Section 2 hereof on an the appropriate registration form of under the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofAct, which registration form shall (i) shall be selected by Splitco and the Company, (ii) shall, in the case of a shelf registrationShelf Registration, be available for the sale of the Registrable Securities Notes by the selling Holders thereof and, in the case of an Exchange Offer, be available for the exchange of Registrable Notes, and such registration statement shall (iii) comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco ; the Company shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective (and, in the case of a Shelf Registration Statement, the Prospectus usable for resales) in accordance with Section 2 hereof; PROVIDED, HOWEVER, that if (1) such period as filing is pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Holder pursuant Broker-Dealer who seeks to such registration statement shall requestsell Exchange Notes, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documentany Registration Statement or Prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco will the Company shall furnish to one counsel for and afford the Holders participating in of the planned offering (selected Registrable Notes and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, a reasonable opportunity to review copies of reasonably complete drafts of all such documents proposed (including copies of any documents to be filed (including all exhibits thereto and each document incorporated by reference therein and all exhibits thereto) proposed to be filed; and the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document to Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Participating Holders must be afforded an opportunity to review prior to the filing of such document if the Majority Holders or such Participating Broker-Dealer, as the case may be, their counsel or the managing underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, object in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingtimely manner;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith each Registration Statement as may be necessary to keep such registration statement continuously Registration Statement effective for such period the Effectiveness Period or the Applicable Period, as the case may be, and cause each Prospectus to be supplemented, if so determined by the Company or requested by the SEC, by any Participating Holder required prospectus supplement and as so supplemented to be filed pursuant to such registration statement shall request Rule 424 (or any similar provision then in force) under the Securities Act, and to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder applicable to it with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement each Registration Statement during the Effectiveness Period or the Applicable Period, as the case may be, in accordance with the intended method or methods of disposition distribution by the seller or sellers selling Holders thereof set forth described in such registration statement; provided, however, that Splitco may discontinue this Agreement (including sales by any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a postParticipating Broker-effective amendment to a registration statement would be appropriateDealer);
(c) furnishin the case of a Shelf Registration, (i) notify each Holder of Registrable Notes included in the Shelf Registration Statement, at least three Business Days prior to filing, that a Shelf Registration Statement with respect to the Registrable Notes is being filed and advising such Holder that the distribution of Registrable Notes will be made in accordance with the method selected by the Majority Holders, (ii) furnish to each Holder of Registrable Notes included in the Shelf Registration Statement and to each underwriter of an underwritten offering of Registrable Notes, if any, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of as many copies of such registration statementeach Prospectus, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus prospectus, and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereundersupplement thereto, and such other documents, documents as such seller and Holder or underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Notes and (Splitco hereby consenting iii) consent to the use in accordance with all applicable laws of each such Offering Document the Prospectus or any amendment or supplement thereto by each such Participating Holder and of the underwriters, if any, selling Holders of Registrable Notes included in the Shelf Registration Statement in connection with the offering and sale of the Registrable Securities Notes covered by such registration statement the Prospectus or prospectus)any amendment or supplement thereto;
(d) use its reasonable best efforts to in the case of a Shelf Registration, register or qualify the Registrable Securities covered by such registration statement Notes under such other all applicable state securities or state “"blue sky” " laws of such jurisdictions by the time the applicable Registration Statement is declared effective by the SEC as any sellers Holder of Registrable Securities or any managing underwriter, if any, Notes covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Notes shall reasonably request in writingwriting in advance of such date of effectiveness, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, Holder and underwriter to consummate the disposition in each such jurisdiction of such Registrable Notes owned by such Holder; PROVIDED, HOWEVER, that the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event Company shall Splitco not be required to (i) qualify to do business as a foreign corporation or as a dealer in securities in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to qualify but for this Section 3(d), (ii) file any general consent to service of process in any jurisdiction where it would not otherwise be so qualified, subject to such service of process or (iii) subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionif it is not then so subject;
(e1) in the case of a Shelf Registration or (2) if Participating Broker-Dealers from whom the Company has received prior written notice that they will be utilizing the Prospectus contained in the Exchange Offer Registration Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Notes and are required to deliver Prospectuses, promptly notify each Holder of Registrable Notes, or such Participating Holder Broker-Dealers, as the case may be, their counsel and each the managing underwriterunderwriters, if any andany, if requested by any such Person, and promptly confirm such notice in writing: writing (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same a Registration Statement has become effective and when any post-effective amendments thereto become effective; , (ii) of any comment letter or request by the SEC or any state securities authority for amendments or and supplements to the registration statement a Registration Statement or the prospectus related thereto Prospectus or for additional information; information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the registration statement qualification of the Registrable Notes or the Exchange Notes to be offered or sold by any Participating Broker-Dealer in any jurisdiction described in Section 3(d) hereof or the initiation of any proceedings for that purpose; , (iv) in the case of a Shelf Registration, if, between the receipt by Splitco effective date of a Registration Statement and the closing of any notification with respect to the suspension sale of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time Notes covered thereby, the representations and warranties contemplated by of the Company contained in any underwriting purchase agreement, securities sale agreement, sales agreement or other similar agreement, relating to the offering shall agreement cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v)) of the happening of any event or the failure of any event to occur or the discovery of any facts, unless Splitco has declared during the Effectiveness Period, which makes any statement made in such Registration Statement or the related Prospectus untrue in any material respect or which causes such Registration Statement or Prospectus to 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, as well as any other corporate developments, public filings with the SEC or similar events causing such Registration Statement not to be effective or the Prospectus not useable for resales and (vi) of the reasonable determination of the Company that a Postponement Period existspost-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, Splitco shall promptly prepare and furnish to each Holder of Registrable Notes included within the coverage of such seller Shelf Registration Statement, without charge, at least one conformed copy of each Registration Statement relating to such Shelf Registration and each underwriterany post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, if any, a reasonable number of copies unless requested);
(h) in the case of a prospectus supplemented Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends (other than with respect to restrictions requiring minimum transfers in blocks having an aggregate principal amount of $100,000) and in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders or amended the underwriters may reasonably request at least two Business Days prior to the closing of any sale of Registrable Notes pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration, promptly after the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period within any twelve-month period) or 3(e)(vi) hereof, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesNotes, such prospectus shall Prospectus will not include an 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 the light of the circumstances under which they were made made, not misleading; and the Company shall notify each Holder to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iiij) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if anyShelf Registration, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly time prior to the filing of any document which is to be incorporated by reference into the registration statement a Registration Statement or the prospectus (a Prospectus after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectusa Registration State- ment, provide a reasonable number of copies of such document to counsel the Holders and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Notes or the Initial Purchasers on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for each Participating series of Notes, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with certificates for the Exchange Notes or the Registrable Notes, as the case may be, in a form eligible for deposit with the Depositary;
(l) 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 Notes or Registrable Notes, as the case may be, and effect such changes to such documents as may be required for them to be so qualified in accordance with the terms of the TIA and execute, and 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 such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements (including underwriting agreements) as are customary in underwritten offerings and take all such other appropriate actions in connection therewith as are reasonably requested by the Holders of at least 25% in aggregate principal amount of the Registrable Notes in order to expedite or facilitate the registration or the disposition of the Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, if requested by (x) an Initial Purchaser, in the case where such Initial Purchaser holds Notes acquired by it as part of its initial placement and (y) Holders of at least 25% in aggregate principal amount of the Registrable Notes covered thereby: (i) make such representations and warranties to Holders of such Registrable Notes and the underwriters (if any), with respect to the business of the Company and the subsidiaries of the Company as then conducted and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and updates thereof (which may be in the form of a reliance letter) in form and substance reasonably satisfactory to the managing underwriters (if any) and the Holders of a majority in amount of the Registrable Notes being sold, addressed to each selling Holder and the underwriters (if any) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by such underwriters in accordance with Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 4 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriterunderwriters) customary for such agreements with respect to all parties to be indemnified pursuant to said Section (including, without limitation, such underwriters and selling Holders); and in the case of an underwritten registration, the above requirements shall be satisfied at each closing under the related underwriting agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make reasonably available for inspection by any selling Holder or Registrable Notes or Participating Broker-Dealer, as applicable, who certifies to the Company that it has a current intention to sell Registrable Notes pursuant to the Shelf Registration, any underwriter participating in any such disposition of Registrable Notes, if any, and make any attorney, accountant or other agent retained by any such selling Holder, Participating Broker-Dealer, as the representatives case may be, or underwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during the Company's normal business hours, all financial and other records, pertinent organizational and operational documents and properties of Splitcothe Company and its subsidiaries (collectively, any Subsidiary, and, in each case, any successor thereto, the "RECORDS") as shall be 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make enable them to exercise any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regapplicable due diligen
Appears in 2 contracts
Sources: Registration Rights Agreement (Equity Office Properties Trust), Registration Rights Agreement (Equity Office Properties Trust)
Registration Procedures. If and whenever Splitco is required with respect to any registration which includes registrable securities held by a holder, the provisions of this Agreement company will, subject to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same)section 2.01, Splitco shall, as expeditiously as possiblepromptly:
(a) prepare and file with the SEC Commission a registration statement on an the 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities prescribed by the selling Holders thereof Commission and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective effective, each in accordance with Section 2.01, and remain continuously effective for such period as to be maintained in effect in accordance with the terms of this Agreement; provided, further, that before filing a registration statement or prospectus or any Participating Holder amendments or supplements thereto (excluding any filings required to be made pursuant to the 1934 Act in the reasonable determination of the Company), the Company will furnish to the Holders covered by such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one their counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete or drafts of all such documents proposed to be filed filed, at least ten (including all exhibits thereto and each document incorporated by reference therein 10) Business Days prior to the extent then required by the rules and regulations of the SEC)filing thereof, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections Holders and their counsel. Each Holder will have the opportunity to object to any information pertaining to any Participating such Holder that is contained therein and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall Company will make the changes corrections reasonably requested by such counsel and shall not file Holder with respect to such information two (2) Business Days prior to filing any Offering Document to which the Participating Holders registration statement or the underwriters, if any, shall reasonably object, amendment thereto or any prospectus or any supplement thereto; provided, thathowever, notwithstanding that the foregoing, Company will not include on any registration statement or amendment thereto (excluding any filings required to be made pursuant to the 1934 Act in the reasonable determination of the Company) or any prospectus or any supplement thereto Registrable Securities of any Holder that objects in writing one (1) Business Days prior to such filing to such inclusion in such filing or to any description of it therein. In no event shall Splitco any Holder be required to file any document with the SEC which identified as a statutory underwriter in the view of Splitco registration statement unless in response to a comment or its counsel does not comply with request from the requirements staff of the Securities Act Commission or of another regulatory agency; provided, however, that if the rules of regulations thereunder or contains Commission requests that a Holder be identified as a statutory underwriter in the registration statement, such Holder will have an untrue statement of a material fact or omits opportunity to state a material fact required to be stated therein or necessary to make any statement therein not misleadingwithdraw from the registration statement;
(ib) prepare and file with the SEC Commission such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith any documents required to be incorporated by reference therein as may be necessary to keep such the registration statement continuously effective for such period effective; cause the prospectus to be supplemented by any required prospectus supplement, and as any Participating Holder so supplemented to be filed pursuant to such registration statement shall request Rule 424 under the 1933 Act; and to comply with the provisions of the Securities 1933 Act applicable to it with respect to the sale or other disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease statement or supplement to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateprospectus;
(c) furnishfurnish to such Holder, without charge, to each Participating Holder and each underwriter, if any, such number of conformed copies of the securities covered by such registration statement and any post-effective amendment thereto, as such Holder may reasonably request, and such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendments or of the rules or regulations thereundersupplements thereto, and other documents, any documents incorporated by reference therein as such seller and underwriter the Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned securities being sold by such seller Holder (Splitco hereby consenting it being understood that the Company consents in writing to the use in accordance with all applicable laws of each such Offering Document by each such Participating the Holder and covered by the underwriters, if any, registration statement in connection with the offering and sale of the Registrable Securities securities covered by such registration statement the prospectus or prospectusany amendments or supplements thereto of the prospectus and any amendment or supplement thereto that is prepared by the Company);
(d) promptly notify such 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 material fact or omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, and in any event within five (5) Business Days of the Company becoming aware of such event, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the investors of such securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities not later than the effective date of the registration statement;
(f) use its reasonable best efforts to register cause all securities included in such registration statement to be listed, by the date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or qualify other market on which the Registrable Securities Common Stock is then listed or proposed to be listed by the Company;
(g) make generally available to its security holders an earnings statement, which need not be audited, satisfying the provisions of Section 11(a) of the 1933 Act as soon as reasonably practicable after the end of the twelve (12)-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said twelve (12)-month period;
(h) after the filing of a registration statement, (i) promptly notify each Holder covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending issued or, to the effectiveness of Company’s knowledge, threatened by the registration statement or the initiation of any proceedings for that purpose; (iv) Commission and of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or state “blue sky” sky laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish take all reasonable actions to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, statement or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicableat the earliest possible moment;
(mi) provide if requested by such Holder, promptly incorporate in a CUSIP number for prospectus supplement or post-effective amendment such information as such Holder reasonably requests to be included therein; and make all Registrable Securities, not later than the required filings of such prospectus supplement or post-effective date amendment as soon as practicable after being notified of the registration statementmatters to be incorporated in such prospectus supplement or post-effective amendment;
(nj) on or prior to the date on which the registration statement is declared effective, use its reasonable best efforts to make available its employees register or qualify, and personnel cooperate with such Holder and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for participation in “road shows” offer and sale under the securities or blue sky laws of each state and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs jurisdiction of the businesses United States as such Holder requests in writing, to use reasonable best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of Splitcothe Registrable Securities covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then otherwise subject;
(k) cooperate with such Holder if any, to facilitate the timely preparation and delivery of certificates or DRS or other book-entry statements (in each case not bearing any Subsidiaryrestrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as such Holder may request;
(l) pay the filing fee covering all Registrable Securities included in a registration statement at the time such registration statement is filed; and
(m) otherwise use its reasonable best efforts to take or cause to be taken all other actions necessary or reasonably advisable to effect the registration of such Registrable Securities contemplated by this Agreement. The Holders, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.02(d) will forthwith discontinue disposition of the securities until the Holders’ receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.02(d) or until it is advised in writing (the “Advice”) by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, each Holder will deliver to the Company (at the Company’s sole expense) all copies, other than permanent file copies then in each casesuch ▇▇▇▇▇▇’s possession, any successor thereto, and the requirements of the marketing process) in prospectus covering such securities current at the marketing time 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 receipt of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regnotice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Soundhound Ai, Inc.), Notes Restructuring Agreement (Soundhound Ai, Inc.)
Registration Procedures. If and whenever Splitco is required by Subject to the provisions of this Agreement to effect or cause Section 2.1 and 2.2, in connection with the registration of any the sale of Registrable Securities under in an underwritten offering pursuant to this Agreement, the Securities Act Company will as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, promptly as expeditiously as possiblereasonably practicable:
(a) prepare furnish to each Participating Unitholder participating in an underwritten offering without charge, prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and file thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto, including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement and such other documents in such quantities as such Participating Unitholder may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities, and give each Participating Unitholder and its Representatives a registration statement reasonable opportunity to review and comment on an appropriate registration form the same prior to filing any such documents;
(i) cause the Company’s Representatives to supply all information reasonably requested by a Participating Unitholder, any Underwriter, or its Representatives in connection with the Registration Statement and (ii) provide each Participating Unitholder, any Underwriter and its Representatives with the opportunity to participate in the preparation of such Registration Statement and the SEC for related Prospectus;
(c) if applicable, use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as a Participating Unitholder reasonably requests and do any and all other acts and things as may be reasonably necessary or advisable to enable a Participating Unitholder to consummate the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (jurisdictions; provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco Company shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file (i) qualify generally to do business in any document with the SEC which jurisdiction where it is not then so qualified, (ii) subject itself to taxation in the view any jurisdiction where it is not otherwise then so subject, (iii) take any action that would subject it to service of Splitco or its counsel does not comply with the requirements process in suits other than those arising out of the Securities Act or offer and sale of the rules securities covered by the Registration Statement or (iv) consent to general service of regulations thereunder process in any jurisdiction where it is not then so subject;
(d) notify each Participating Unitholder at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make any statement therein the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) , and the Company will promptly prepare and file with the SEC a supplement or amendment to such amendmentsprospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, post-effective amendments 430A and supplements (including430B under the Securities Act in a timely manner) so that, without limitationas thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any reports material fact required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be stated therein or necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with make the provisions statements therein, in the light of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedcircumstances under which they were made, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionnot misleading;
(e) promptly notify advise any Underwriter(s) and each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) Unitholder promptly of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement Registration Statement under the Securities Act or the initiation of any proceedings for that purpose; (iv) of the receipt suspension by Splitco of any notification with respect to the suspension state securities commission of the qualification of any the Registrable Securities for offering or sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation of any proceeding for such purpose; (v) any of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if preceding purposes. If at any time the representations and warranties contemplated by SEC shall issue any underwriting agreement, securities sale agreementstop order suspending the effectiveness of the Registration Statement, or any state securities commission or other similar agreementregulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or “blue sky” laws, relating the Company shall use its reasonable best efforts to obtain the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented withdrawal or amended so that, as thereafter delivered to the purchasers lifting 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 misleadingorder as promptly as practicable;
(f) use its reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company to enable each Participating Unitholder to consummate the disposition of such Registrable Securities; provided, however, that the Company shall in no event be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, (iii) 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 (iv) consent to general service of process in any jurisdiction where it is not then so subject;
(g) enter into customary agreements and use reasonable best efforts to take such other actions as are reasonably requested by each Participating Unitholder and are consistent with the other obligations of the Company hereunder in order to expedite or facilitate any underwritten offering;
(h) if requested by a Participating Unitholder, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, and subject to the provisions of this Agreement, such information as such Participating Unitholder may reasonably request to have included therein, including any terms of the underwritten 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 included in such prospectus supplement or post-effective amendment;
(i) otherwise use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after within the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)required time period, an earnings statement (which need not be audited) covering the a period of at least twelve (12) consecutive months 12 months, beginning with the first day of Splitco’s first calendar fiscal quarter after the effective date of the registration statementRegistration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderthereunder or any successor provisions thereto;
(gj) (i) cause all such Registrable Securities covered by such registration statement use reasonable best efforts to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 Registration Statement not later than the effective date of such registration statement; Registration Statement;
(iik) instruct such transfer agent (A) cooperate with any Participating Unitholder and any Underwriter to release, on such effective date, 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 Company not bearing any restrictive legends and not subject to any stop transfer order with respect to the certificates with respect to the any transfer agent, and cause such Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, be issued in such denominations requested by and registered in such names as the sellers of lead Unitholder may request in writing in connection with the Registrable Securities or any managing underwriter; and (iii) in the case closing of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the sale of Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jl) use its reasonable best efforts to cause such Registrable Securities to be listed or quoted on the Agreed Securities Exchange or, if EnLink Midstream Common Units are not then listed on the Agreed Securities Exchange, then on such other securities exchange or national quotation system on which the EnLink Midstream Common Units are then listed or quoted; and
(m) the Company will cooperate with each Participating Unitholder and each Underwriter in effecting any underwritten offering as promptly as reasonably practicable following receipt of an Underwritten Offering Request. In connection with any underwritten offering (i) under Section 2.1(b), Devon Gas Services shall be entitled to select the managing Underwriter or Underwriters and (ii) under Section 2.2, the Company shall be entitled to select the managing Underwriter or Underwriters. The Company shall reasonably assist such managing Underwriter or Underwriters in their efforts to sell Registrable Securities pursuant to such underwritten offering and shall make senior executives with appropriate seniority and expertise reasonably available for customary “road show” or other presentations during the marketing period for such Registrable Securities. In furtherance of the foregoing, the Company will use its reasonable best efforts to obtain an opinion from Splitco’s counsel and deliver to each Underwriter and Participating Unitholder a “cold comfort” comfort letter and updates thereof from the independent registered public accountants who have certified Splitco’s accounting firm for the Company (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Company whose financial statements (and/or any other financial statements) are included or incorporated by reference in such registration statement, in each case, the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such opinions Underwriter and “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco Unitholder 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) . The Company will use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and deliver to each managing underwriter, if any, Underwriter and make Unitholder a 10b-5 statement and legal opinion from the representatives of Splitco, any Subsidiary, and, Company’s counsel in each case, any successor thereto, reasonably available for discussion of customary form and covering such document matters as are customarily covered by 10b-5 statements and make legal opinions delivered to Underwriters in underwritten offerings as such changes in such document concerning the Underwriter and/or Participating Holders prior to the filing thereof as counsel for such Participating Holders or underwriters Unitholder may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg.
Appears in 2 contracts
Sources: Registration Rights Agreement (EnLink Midstream, LLC), Registration Rights Agreement (Devon Energy Corp/De)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco the Company shall, as expeditiously as possible:
(a) prepare and file all required filings with SEC and FINRA, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofthereof (including, without limitation, a Partner Distribution), which registration form (i) shall be selected by Splitco the Company (except as provided for in a Demand Registration Request) and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, request (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or state “blue sky” laws of any such filingjurisdiction, Splitco or any free writing prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (jointly selected by the Initiating Holder and the Majority Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco the Company shall make the changes reasonably requested by such counsel and shall not file any Offering Document registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Initiating Holders, the Majority Participating Holders or the underwriters, if any, shall reasonably object), provided, provided that, notwithstanding the foregoing, in no event shall Splitco the Company be required to file any document with the SEC which in the view of Splitco the Company or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement statement, and any prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act, in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitcothe Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco the Company hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions in accordance with the intended methods of disposition (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each institutional Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any other Offering Document free writing prospectus has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement or any amendment thereto, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleadingmisleading (which notice shall notify he Participating Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information); 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 respectscorrect; and, if the notification relates to an event described in clause (v), unless Splitco the Company has declared that a Postponement Period exists, Splitco the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitcothe Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (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 Splitco the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (iiB) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 Splitcothe Company, including without limitation all corporate governance requirements;
(ih) 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; (ii) instruct such transfer agent (A) to releasestatement and, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Initiating Holder or 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 Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitcothe Company’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitcothe Company’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold 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 Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterunderwriter and each Participating Holder to the extent permitted by the Company’s independent public accountants;
(k) deliver promptly to counsel for each Participating Holder (other than individuals) and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe 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 Splitco the Company may reasonably request, make reasonably available for inspection by counsel for each Participating HolderHolder (other than individuals), by counsel for 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 Participating Holder (other than individuals) or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and to use reasonable best efforts to cause applicable personnel all of the Company’s officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector counsel for a Participating Holder, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder (other than individuals) and to each managing underwriter, if any, and make the Company’s representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, provided that, notwithstanding the foregoing, in no event shall Splitco the Company be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regS
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Interline Brands, Inc./De)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously promptly as possiblepracticable:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel and counsel, including any comment letter from the SEC. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening in writing of any Proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference); provided that the Corporation may furnish or make available any such registration statement such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdiction; provided, except however, that in no event shall Splitco the Corporation will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it is not then so qualified or (ii) take any action that would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdictionjurisdiction where it is not then so subject;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed cooperate with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) selling holders of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under and the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwritermanaging underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct Registration Statement and, if required by the Corporation’s transfer agent, cause an opinion of counsel to be delivered to such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the holder or the underwriter or managing underwriter, if any, of such Registrable Securities under the Registration Statement;
(Am) use its reasonable best efforts to release, cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters, if any, with respect to the business of the Registrable Securities which are Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters shall be parties to any such underwriting agreement in underwritten offerings, and, if true, confirm the same if and maywhen requested, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities and the underwriters opinions of counsel to the Corporation and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the Participating Holders, effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (iiv) furnish deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to each Participating Holder upon its request such Registration Statement, their counsel and to each underwriterthe managing underwriters, if any, a copy to evidence the continued validity of the representations and warranties made pursuant to Section 6(n)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such opinion underwriting or similar agreement, or as and letter addressed to such underwriterthe extent required thereunder;
(ko) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holdera representative of the selling holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant or other agent one firm of attorneys and one firm of accountants retained by any Participating Holder such selling holders or any such underwriter, (collectivelyas applicable, at the “Inspectors”)offices where normally kept, all pertinent during reasonable business hours, such financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, Corporation and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information its subsidiaries reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (li) use its reasonable best efforts disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to prevent the issuance such Person, is required by law or obtain the withdrawal of any order suspending the effectiveness of the registration statementapplicable legal process, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(miii) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make such information becomes generally available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters public other than as a result of a non-permitted disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (taking into account the needs of the businesses of Splitcoi) or (ii) above, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event Person shall Splitco be required to file any document with give the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy Corporation written notice of the registration statement and any post-effective amendments or supplements theretoproposed disclosure prior to such disclosure and, including financial statements and schedulesif requested by the Corporation, all documents incorporated therein by reference, assist the prospectus contained Corporation in such regseeking t
Appears in 2 contracts
Sources: Registration Rights Agreement (Sportradar Group AG), Registration Rights Agreement (Sportradar Group AG)
Registration Procedures. If and whenever Splitco registration of Registrable Securities is required pursuant to this Agreement, subject to the express terms and conditions set forth in this Agreement, the procedures to be followed by the provisions Company and each participating Holder to register the sale of this Agreement to effect or cause the registration of any Registrable Securities under pursuant to a Registration Statement, and the Securities Act respective rights and obligations of the Company and such Holders with respect to the preparation, filing and effectiveness of such Registration Statement, are as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possiblefollows:
(a) The Company will (i) prepare and file a Registration Statement or a prospectus supplement, as applicable, with the SEC a registration statement on an appropriate registration form of Commission (within the SEC for the disposition of such Registrable Securities time period specified in accordance with the intended method of disposition thereofSection 2(a) or Section 2(b), which registration form (i) shall be selected by Splitco and (ii) shallas applicable, in the case of a shelf registrationShelf Registration, an Underwritten Shelf Takedown or a Demand Registration) which Registration Statement (A) shall be on a form selected by the Company for which the Company qualifies, (B) shall be available for the sale of the Registrable Securities by in accordance with the selling Holders thereof intended method or methods of distribution, and such registration statement (C) shall comply as to form in all material respects with the requirements of the applicable registration form and include and/or incorporate by reference all financial statements required by the SEC Commission to be filed therewith, and Splitco shall (ii) use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period the periods provided under Section 2(a) or Section 2(b), as any Participating Holder pursuant to such registration statement shall requestapplicable, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, the case of a Shelf Registration Statement or before sending a response to an SEC comment letter prior to any such filing, Splitco Demand Registration Statement. The Company will furnish to one any Qualified Holder named as a selling shareholder (or selling shareholders) therein, any counsel designated by such Qualified Holder, counsel for the Holders participating in the planned offering of a Majority of Included Registrable Securities (selected as provided herein) and the managing underwriter or underwriters (selected as provided herein) of an underwritten Public Offering of Registrable Securities, if applicable, copies of all substantive correspondence from the Commission received in connection with such Public Offering, subject in each case to such foregoing Persons entering into a customary confidentiality agreement with respect thereto if requested by the Participating HoldersCompany. The Company will (I) at least two (2) Business Days (or such shorter period as shall be reasonably practicable under the circumstances) prior to the anticipated filing of the Shelf Registration Statement, a Demand Registration Statement or any related Prospectus or any amendment or supplement thereto, or before using any Issuer Free Writing Prospectus, furnish to any Qualified Holder named as a selling shareholder (or selling shareholders) therein, any counsel designated by such Qualified Holder and to one counsel for the ManagerHolders of a Majority of Included Registrable Securities (selected as provided herein) and the managing underwriter or underwriters (selected as provided herein) of an underwritten Public Offering of Registrable Securities, if anyapplicable, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits subject in each case to such foregoing Persons entering into a customary confidentiality agreement with respect thereto and each document incorporated by reference therein to the extent then required if requested by the rules and regulations Company), (II) use its commercially reasonable efforts to address in each such document prior to being so filed with the Commission such comments as any of the SECforegoing Persons reasonably shall propose and (III) without limiting the Company’s rights under Section 2(f), not include in any Registration Statement or any related Prospectus or any amendment or supplement thereto information regarding a participating Holder to which documents will be subject to a participating Holder reasonably objects; provided, however, the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file provide copies of any document with amendment or supplement filed solely to incorporate in any Form S-1 (or other form not providing for incorporation by reference) any filing by the SEC which in Company under the view of Splitco or its counsel does not comply with the requirements of the Securities Exchange Act or any amendment or supplement filed for the purpose of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;adding additional selling shareholders thereunder.
(b) The Company will as promptly as reasonably practicable (i) prepare and file with the SEC Commission such amendments, including post-effective amendments amendments, and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith as (A) may be reasonably requested by any Holder of Registrable Securities covered by such Registration Statement necessary to permit such Holder to sell in accordance with its intended method of distribution, to the extent consistent such intended method of distribution is consistent with Exhibit B hereto, or (B) may be necessary under applicable law to keep such registration statement Registration Statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement thereby for the periods provided under Section 2(a) or Section 2(b), as applicable, in accordance with the intended methods method of disposition distribution.
(c) The Company will make all required filing fee payments in respect of any Registration Statement or Prospectus used under this Agreement (and any Public Offering covered thereby) within the deadlines specified by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and Securities Act.
(iid) provide notice to such sellers The Company will notify each Holder of Registrable Securities named as a selling shareholder in any Registration Statement and the Managermanaging underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if anyapplicable, of Splitco’s reasonable determination that a (i) as promptly as reasonably practicable when any Registration Statement or post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become declared effective; (ii) of any comment letter the issuance or request threatened issuance by the SEC Commission or state securities any other governmental or regulatory authority for amendments of any stop order, injunction or supplements to other order or requirement suspending the registration statement effectiveness of a Registration Statement covering any or all of the Registrable Securities or the prospectus related thereto initiation or threatening of any Proceedings for additional informationthat purpose; (iii) of the issuance receipt by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose; or (viv) of the existence discovery that, or upon the happening of any fact event the result of which Splitco becomes aware which results in the Offering Document which, such Registration Statement or the information conveyed Prospectus or Issuer Free Writing Prospectus relating thereto or any document incorporated or deemed to any purchaser at the time of sale to such purchaser containing be incorporated therein by reference contains an untrue statement of a in any material respect or omits any material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein the statements in the Registration Statement or the Prospectus or Issuer Free Writing Prospectus relating thereto (in the case of a Prospectus or an Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading; and , or when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement or Prospectus, or if, for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act, correct such misstatement or omission or effect such compliance.
(vie) if at Upon the occurrence of any time the representations and warranties event contemplated by any underwriting agreementSection 3(d)(iv), securities sale agreementas promptly as reasonably practicable, the Company will (x) prepare a supplement or other similar agreementamendment, relating including a post-effective amendment, if required by applicable law, to the offering shall cease affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be true and correct in all material respects; andincorporated therein by reference or to the applicable Issuer Free Writing Prospectus, (y) furnish, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if anyrequested, a reasonable number of copies of a prospectus supplemented such supplement or amended amendment to the selling Holders, their counsel and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if applicable, and (z) file such supplement, amendment and any other required document with the Commission so that, as thereafter delivered to the purchasers of such any Registrable Securities, such prospectus Registration Statement, such Prospectus or such Issuer Free Writing 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 the case of a Prospectus or an Issuer Free Writing Prospectus, in light of the circumstances under which they were made made) not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holderssuch Issuer Free Writing Prospectus shall not include information that conflicts with information contained in the Registration Statement or Prospectus, as soon as reasonably practicable after the effective date in each case such that each selling Holder can resume disposition of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued Registration Statement or Prospectus. Following receipt of notice of any event contemplated by Splitco are then listed Section 3(d)(ii) through (if anyiv), if a Holder shall suspend sales of the listing of such Registrable Securities is then permitted under pursuant to such Registration Statement and shall not resume sales until such time as it has received written notice from the rules Company to such effect. The Company shall provide any supplemented or amended prospectus necessary to resume sales, if requested by any Holder.
(f) The Company will use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of such exchange(i) any stop order or other order suspending the effectiveness of a Registration Statement or the use of any Prospectus filed pursuant to this Agreement, or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, in each caseas promptly as practicable, or if any such order or suspension is made effective during any Suspension Period, as promptly as reasonably practicable;practicable after the Suspension Period is over.
(mg) provide a CUSIP number for all During the Effectiveness Period or the Shelf Period, as applicable, the Company will furnish to each selling Holder, its counsel and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitcoif applicable, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwritertheir request, without charge, upon request, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the registration statement extent requested by such selling Holder or underwriter (including those incorporated by reference) promptly after the filing of such documents with the Commission.
(h) The Company will promptly deliver to each selling Holder and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if applicable, without charge, as many copies of the applicable Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus, final Prospectus, and any postother Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any Issuer Free Writing Prospectus)), all exhibits and other documents filed therewith and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such selling Holder or underwriter, and upon request, subject to any confidentiality undertaking as the Company shall reasonably request, a copy of any and all transmittal letters or other correspondence to or received from the Commission or any other governmental authority relating to such offer. Subject to Section 2(e) hereof, the Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and any applicable underwriter in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(i) [Reserved.]
(j) The Company will cooperate with the Holders and the underwriter or managing underwriter of an underwritten Public Offering of Registrable Securities, if any, to facilitate the timely preparation and delivery of certificates or book-entry statements representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates or book-entry statements shall be free of all restrictive legends, indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders or the underwriter or managing underwriter of an underwritten Public Offering, as applicable, may reasonably request and instruct any transfer agent and registrar of Registrable Securities, if any, may request. In connection therewith, if required by the Company’s transfer agent, the Company will promptly, after the effective amendments date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon the sale by any Holder or supplements the underwriter or managing underwriter of an underwritten Public Offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement and to release any stop transfer orders in respect thereof. At the request of any Holder or the managing underwriter, if any, the Company will promptly deliver or cause to be delivered an opinion or instructions to the transfer agent in order to allow the Registrable Securities to be sold from time to time free of all restrictive legends.
(k) Notwithstanding anything to the contrary contained herein, the right of any Holder to include such Holder’s Registrable Securities in an underwritten offering shall be conditioned upon (x) such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein, (y) such Holder entering into customary agreements, including an underwriting agreement in customary form and sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Holders entitled to select the managing underwriter or managing underwriters hereunder (provided that (I) any such Holder shall not be required to make any representations or warranties to the Company or the underwriters (other than (A) representations and warranties regarding (1) such Holder’s ownership of its Registrable Securities to be sold or transferred, (2) such Holder’s power and authority to effect such transfer, (3) such matters pertaining to compliance with securities laws as may be reasonably requested by the Company or the underwriters, (4) the accuracy of information concerning such Holder as provided by or on behalf of such Holder, and (5) any other representations required to be made by the Holder under applicable law, and (B) such other representations, warranties and other provisions relating to such Holder’s participation in such Public Offering as may be reasonably requested by the underwriters) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 6(b) hereof, or to the underwriters with respect thereto, except to the extent of the indemnification being given to the underwriters and their controlling Persons in Section 6(b) hereof and (II) the aggregate amount of the liability of such Holder in connection with such offering shall not exceed such Holder’s net proceeds from the disposition of such Holder’s Registrable Securities in such offering and (z) such Holder completing and executing all questionnaires, powers of attorney, custody agreements and other documents reasonably required under the terms of such underwriting arrangements or by the Company in connection with such underwritten Public Offering.
(l) The Company agrees with each Holder that, in connection with any underwritten Public Offering (including financial statements and schedules, all documents incorporated therein by referencean Underwritten Shelf Takedown), the prospectus contained Company shall: (i) enter into and perform under such customary agreements (including underwriting agreements in such regcustomary form, including customary representations and warranties and provisions with respec
Appears in 2 contracts
Sources: Registration Rights Agreement (Noble Corp), Registration Rights Agreement (Noble Corp)
Registration Procedures. (a) If and whenever Splitco the Corporation 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 this Agreement (or use best efforts or reasonable best efforts Section 3 and Section 4 hereof, the Corporation shall effect such registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(i) Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement (other than in connection with a Piggyback Registration initial filing) or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference but excluding any amendment or supplement solely to add or change selling stockholders named therein), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(iii) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the applicable period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(iii) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (1) 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, (2) 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, (3) 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, (4) if at any time the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(a)(xv) below cease to be true and correct, (5) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (6) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iv) Use its 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 reasonably earliest practical date.
(v) If requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, or the Shareholders participating in a Resale Shelf Registration, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders or Shareholders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(a)(v) that are not, in the opinion of its securities that cease counsel for the Corporation, in compliance with applicable law.
(vi) Furnish or make available to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(vii) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Corporation, subject to Section 6(c), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dviii) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (1) qualify generally to do business in any jurisdiction where it is not then so qualified or (2) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(ix) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(x) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of such Registrable Securities.
(xi) Upon the Registrable Securities in such jurisdictions (including keeping such registration occurrence of any event contemplated by Section 6(a)(iii)(6) above, prepare a supplement or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required post-effective amendment to qualify the Registration Statement or a supplement to do business as a foreign corporation in the related Prospectus or any jurisdiction where it would not, but for the requirements of this paragraph (d), be required document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fxii) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gxiii) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iixiv) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent Registration Statement to be authorized to be listed on The New York Stock Exchange or any other securities exchange on which shares of the particular class of Registrable Securities are at that time qualified or listed.
(Axv) to releaseEnter into such agreements (including an underwriting agreement in form, on scope and substance as is customary in underwritten offerings) and take all such effective date, any stop transfer order with respect to other actions reasonably requested by the certificates with respect to holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and with respect to an underwritten registration, (1) make such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters with respect to the business of the Registrable Securities which are Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters shall be parties to any such underwriting agreement in underwritten offerings, and, if true, confirm the same if and maywhen requested, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j2) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Corporation and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and 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 counsel and underwriters, (3) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (4) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (5) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 6(a)(xv)(1) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, or as and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;extent required thereunder.
(kxvi) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably Make available for inspection by counsel for each Participating Holdera representative of the selling holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCorporation and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Corporation and its subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
(l) use its reasonable best efforts to prevent Registration Statement; provided, however, that any information that is not generally publicly available at the issuance or obtain the withdrawal time of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 delivery of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies information shall be kept confidential by such Persons unless (1) disclosure of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reginformation is require
Appears in 2 contracts
Sources: Registration Rights Agreement (Freescale Semiconductor Holdings I, Ltd.), Registration Rights Agreement (Freescale Semiconductor Holdings I, Ltd.)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or Section 4, the Company shall use best efforts or its reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco shalland pursuant thereto the Company shall cooperate in the sale of the securities and shall use its reasonable best efforts, as expeditiously promptly as possiblepracticable to the extent applicable, to:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Company may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) use its reasonable best efforts prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions jurisdiction; provided, however, that the Company will not be required to (including keeping such registration or qualification i) qualify generally to do business in effect for so long as such registration statement remains in effect), except that in no event shall Splitco any jurisdiction where would not otherwise be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph Agreement or (d), be required to be so qualified, to ii) take any action that would subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the Purchaser of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from customary due diligence review, make available for inspection by a representative of the independent public accountants who have certified Splitco’s financial statements (and/or selling holders of Registrable Securities, any other financial statements) included or incorporated by reference underwriter participating in any such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case disposition of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its subsidiaries, as shall be reasonably necessary and cause the officers, directors and employees of the Company and its subsidiaries to enable them to exercise their supply all information and participate in customary due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information sessions in each case reasonably requested by any such Inspector representative, underwriter, counsel or accountant in connection with such registration statement;
Registration Statement, provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (li) use its disclosure of such information is required by court or administrative order or in connection with an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness judgment of the registration statementOffering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the lifting Company. In the case of any suspension a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
proposed disclosure prior to such disclosure (m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) except in the marketing case of Registrable Securities in any underwritten offering;
(oii) promptly prior to the filing of any document which above when a proposed disclosure was or is to be incorporated by reference into the registration statement made in connection with a Registration Statement or the prospectus (after the initial filing of such registration statement), Prospectus under this Agreement and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which except in the view case of Splitco clause (i) above when a proposed disclosure is in connection with a routine audit or its counsel contains an untrue statement of examination by, or a material fact blanket document request from, a regulatory or omits to state a material fact required to be stated therein self-regulatory authority, bank examiner or necessary to make any statement therein not misleadingauditor);; and
(p) furnish to counsel for cooperate with each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy seller 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 regRegistrable Secu
Appears in 2 contracts
Sources: Registration Rights Agreement (Graftech International LTD), Investment Agreement (Graftech International LTD)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 3 or Section 4 of this Agreement (or Schedule C, the Company shall use best efforts or its reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco shalland pursuant thereto the Company shall cooperate in the sale of the securities and shall use its reasonable best efforts, as expeditiously promptly as possiblepracticable to the extent applicable, to:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable that, before filing an Offering Documenta Registration Statement or Prospectus or any amendment or supplement thereto (including documents that would be incorporated or deemed to be incorporated therein by reference, except to the extent that such documents shall have previously been filed with or before sending a response furnished to an the SEC comment letter prior or are in final, executed form), the Company shall furnish or otherwise make available to any such filing, Splitco will furnish to one counsel for the Holders participating in holders of the planned offering Registrable Securities covered by such Registration Statement (selected by the Participating Holderswho may share such documents with their clients) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors; provided that nothing in this Section 6(a) is intended to effect any waiver of the Company’s attorney-client or other legal privilege. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendment or supplement thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein, except to the extent that such documents shall have previously been filed with or furnished to the SEC or are in final, executed form) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 of the Securities Act;
(c) notify counsel to each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person or such selling holder) 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 (if such Registration Statement is not an Automatic Shelf Registration Statement), (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 proceeding for that purpose, (iv) if at any 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 6(n) of this Schedule C cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 change 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Shareholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then-issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration action under this Section 6(e) that is not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law;
(f) furnish or make available to be Registrable Securities; and (ii) provide notice to such sellers counsel for each selling holder of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement counsel, the holder such number counsel represents or such underwriter); provided that the Company may furnish or make available any such document in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller document in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) use its reasonable best efforts prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdiction; provided, except however, that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualified, to qualify but for this Agreement or (ii) take any action that would subject itself it to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legend) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or Registration Statement cause an opinion of counsel as to the initiation effectiveness of any proceedings for Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorization, certificate, or direction required by the transfer agent that purpose; authorizes and directs the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, or, if later, the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) of the receipt by Splitco of any notification with respect this Schedule C, prepare a supplement or post-effective amendment to the suspension Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from customary due diligence review, make available for inspection by a representative of the independent public accountants who have certified Splitco’s financial statements (and/or selling holders of Registrable Securities, any other financial statements) included or incorporated by reference underwriter participating in any such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case disposition of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its subsidiaries, as shall be reasonably necessary and cause the officers, directors and employees of the Company and its subsidiaries to enable them to exercise their supply all information and participate in customary due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information sessions in each case reasonably requested by any such Inspector Offering Persons in connection with such registration statement;
Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons except (li) use where disclosure of such information is requested or legally compelled (in either case pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory body or pursuant to a civil investigative demand or similar judicial process), (ii) where such information is or becomes generally known to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement, (iii) where such information (A) was known to such Offering Persons on a nonconfidential basis (prior to its disclosure by the Company) from a source other than the Company that, after reasonable best efforts inquiry, is entitled to prevent disclose such information and is not bound by any contractual, legal or fiduciary obligation of confidentiality to the issuance or obtain Company with respect to such information, (B) was in the withdrawal of any order suspending the effectiveness possession of the registration statement, Offering Persons on a nonconfidential basis prior to its disclosure to the Offering Persons by the Company or (C) is subsequently developed by the lifting Offering Persons without using all or any portion of any suspension of the qualification of such information or violating any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 obligations of such registration statement)Persons under this Agreement or (iv) for disclosure in connection with any suit, and prior to the filing arbitration, claim or use of litigation involving this Agreement or against any free writing prospectusOffering Person under federal, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the representatives of Splitco, any Subsidiary, and, state or other securities laws in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regcon
Appears in 2 contracts
Sources: Equity Commitment and Investment Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Registration Procedures. If and whenever Splitco is required In the case of each Registration, qualification or compliance effected by the provisions Company pursuant to this Section 2, the Company will keep the Investors advised in writing as to the initiation of this Agreement each registration, qualification and compliance and as to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possiblecompletion thereof. The Company will:
(a) prepare Prepare and file as soon as practicable with the SEC Commission a registration statement on an appropriate registration form of Registration Statement with respect to 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC securities to be filed therewith, Registered and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (until the Investors have completed the distribution described in the Registration Statement relating thereto; provided, however, however that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement, or before sending a response to an SEC comment letter prior to any such filing, Splitco the Company will furnish to one counsel for the Holders participating in holders of Registrable Securities covered by such Registration Statement, the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, and any attorney, accountant or other agent retained by any such holders of Registrable Securities or underwriters (a) copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessaryholders, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such their counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, and (b) if requested, financial and other information required by the Commission to be included in such Registration Statement and all financial and other records, pertinent corporate documents and properties of the Company customarily reviewed in connection with an underwritten registration; and shall reasonably objectcause the officers, provideddirectors and employees of the Company, thatcounsel to the Company and independent certified public accountants to the Company, notwithstanding the foregoingto respond to such inquiries and supply all information, as shall be necessary, in no event shall Splitco be required the opinion of respective counsel to such holders and underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, and will not file any document Registration Statement to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriter, if any, shall, for reasonable reasons, object;
(b) Furnish to the Investor and to each underwriter such number of copies of the Registration Statement and all amendments thereto and the prospectus included therein (including each preliminary prospectus and any amendments or supplements to the prospectus or preliminary prospectus) as such persons may reasonably request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement (and the Company hereby consents to the use of, in accordance with all applicable laws, of each of the Registration Statement and any amendments thereto and any prospectus and any supplement thereto by each such seller and underwriters, if any, in connection with the SEC which offering and sale of Registrable Securities covered by such Registration Statement);
(c) Prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in the view of Splitco connection with such Registration Statement as may be necessary to keep such Registration Statement effective or its counsel does not to comply with the requirements provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement for the period set forth in Section 2.8(a) above;
(d) Use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities laws of such jurisdictions as shall be reasonably requested by the Investors, to keep such Registration or qualification in effect for so long as the Registration Statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(e) Use its best efforts to (i) obtain the withdrawal or any order suspending the effectiveness of such Registration Statement or sales thereunder at the earliest possible time and (ii) cause all Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities of United States jurisdictions as may be necessary to enable the seller thereof to consummate the disposition of such Registrable Securities;
(f) Comply with all applicable rules and regulations of regulations thereunder the Commission;
(g) Permit any Investor which, in its reasonable judgment, might be deemed to be an underwriter or contains a controlling person of the Company, to participate in the preparation of such Registration Statement or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Investor and its counsel should be included;
(h) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering provided the Investors shall also enter into and perform their respective obligations under such an agreement;
(i) Notify the holders of Registrable Securities covered by the Registration Statement at any time (i) when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement the statements therein not misleading;
(i) prepare and file with misleading or incomplete in the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions light of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedcircumstances then existing, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and when the Manager, if any, of Splitco’s reasonable determination that a prospectus relating thereto or any supplement or post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC filed, and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; , (iiiii) of any comment letter or request by the SEC or state securities authority Commission for amendments or supplements to the registration statement Registration Statement or the prospectus related thereto or for additional information; (iii) , of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that such purpose; , (iv) if at any time the representations and warranties of the Company to the Investor in connection with the registration cease to be accurate in all material respects, or (v) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use Use its reasonable best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) to obtain an opinion from Splitco’s opinion, dated as of such date, of the counsel and a “cold comfort” letter and updates thereof from representing the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in Company for the purposes of such registration statementRegistration, in each case, in customary form and covering such matters substance as are is customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered given to underwriters in an underwritten public offeringsoffering, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory addressed to the underwriters, if any, and to each Investor selling Registrable Securities in the Participating Holders, offering and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy letter dated as of such opinion date, from the independent certified public accountants of the Company, in form and letter substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to such underwriterthe underwriters and the Investor;
(k) deliver promptly to counsel for each Participating Holder Cooperate with the selling holders of Registrable Securities and to each the managing underwriterunderwriters, if any, copies to facilitate the timely preparation and delivery of all correspondence between certificates representing the SEC Registrable Securities not bearing any restrictive legends and Splitcoin a form eligible for deposit with The Depository Trust Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect other exchange agent reasonably acceptable to the registration statementCompany, and, upon receipt of such confidentiality agreements as Splitco 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 sold and cause such Registrable Securities to be in such registration statement denominations and by registered in such names as the managing underwriters, if any, or holder of Registrable Securities may request at least three (3) business days prior to any attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, sale of Registrable Securities to the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statementunderwriters;
(lI) use its Use all reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of take all other steps necessary to effect the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicablecovered by the Registration Statement contemplated hereby;
(m) provide Cause all such Registrable Securities registered pursuant to a Registration Statement that becomes effective to be listed on each securities exchange on which similar securities issued by the Company arc then listed; and
(n) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to a Registration Statement that becomes effective and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regRegistration.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MaxPoint Interactive, Inc.), Investors’ Rights Agreement (MaxPoint Interactive, Inc.)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any file a Registration Statement to Register Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish Section 2, the same), Splitco shall, as expeditiously as possibleCompany will:
(ai) prepare and within 60 days of the receipt of a request for Registration file with the SEC a registration statement on an appropriate registration form of Commission 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 Splitco 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 Registration Statement required pursuant to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewithSection 2, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for as promptly as practicable thereafter. Prior to filing such period as Registration Statement or any Participating Holder pursuant to such registration statement amendments thereto with the Commission, the Company shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one the counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, Cablevision copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including before any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the such filing or maintain the effectiveness thereof)is made, and Splitco shall make the changes reasonably requested Company will comply with any reasonable request made by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make changes in any statement therein not misleadinginformation contained in such documents relating to the Stockholder;
(iii) prepare and file with the SEC Commission such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement Registration Statement until the earliest of (A) the termination of this Agreement pursuant to Section 17 and (B) such time as all of such securities have been disposed of;
(iii) furnish to the Stockholder such number of conformed copies of such registration statement, Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included Prospectus contained in such registration statement (including each preliminary prospectus Registration Statement and any summary prospectus) supplements thereto and any other prospectus Prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, including documents incorporated by reference, as such seller and underwriter the Stockholder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)request;
(div) use its all reasonable best efforts to register or qualify the all Registrable Securities covered by registered pursuant to such registration statement Registration Statement under such other securities or state “blue sky” sky laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, the Stockholder shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if anyrequest, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping keep such registration or qualification in effect for so long as such registration statement Registration Statement remains in effect), and take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the securities owned by the Stockholder, except that in no event the Company shall Splitco not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), iv) be required obligated to be so qualified, to be subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(ev) use all reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Stockholder to consummate the disposition of such Registrable Securities;
(vi) promptly notify each Participating Holder and each managing underwriter, if the Stockholder at any and, if requested by any such Person, confirm such notice in writing: (i) time when the registration statement or any other Offering Document has been filed with Company becomes aware that a Prospectus relating to Registrable Securities is required to be delivered under the SEC andSecurities Act, with respect to of the Offering Document, when the same has become effective; (ii) happening of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact event as a result of which Splitco becomes aware which results the Prospectus included in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing Registration Statement, as then in effect, includes an untrue statement of a material fact or omitting omits to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; and (vi) if at any time misleading in the representations and warranties contemplated by any underwriting agreementlight of the circumstances under which they were made, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates request of the Stockholder and subject to an event described in clause (v)Section 4(b)(i) and Section 8 hereof, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, the Stockholder a reasonable number of copies of a prospectus supplemented supplement to or amended an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingmade;
(fvii) otherwise use all reasonable efforts to comply (with the Securities Act and continue to comply) the Exchange Act and with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)Commission, and make generally available to its security holders, as soon as reasonably practicable after the effective date consider any suggestions of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 Stockholder with respect to such shares with FINRA, and comply (and continue Registration Statement or Prospectus to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsensure such compliance;
(iviii) 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, Registration Statement not later than the effective date of the registration statementRegistration Statement;
(nix) use its all reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide list all Shares covered by such Registration Statement on any securities exchange on which the Common Stock is then listed; and
(x) upon the reasonable assistance to the underwriters (taking into account the needs request of the businesses of SplitcoStockholder, any Subsidiary, and, in each case, any successor thereto, and otherwise use all reasonable efforts to effect the requirements of the marketing process) in the marketing registration of Registrable Securities under the Securities Act as provided 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regSection 2.
Appears in 2 contracts
Sources: Merger Agreement (Cablevision Systems Corp /Ny), Merger Agreement (General Electric Co)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 6.1, Section 6.2 or use best efforts or reasonable best efforts to accomplish Section 6.3, the same), Splitco shall, Company shall as expeditiously as possiblereasonably practicable:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(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 commercially reasonable efforts to cause such registration statement to become and remain effective pursuant to the terms of this Article VI; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing such registration statement or any amendments thereto, the Company will furnish to the 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 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such registration statement or prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Requesting Shareholder(s), their counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with Applicable Law;
(ii) except in the case of a Shelf Registration Statement, prepare and file with the Commission such amendments, including post-effective amendments amendments, and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request the terms of this Article VI, and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement statement;
(iii) in accordance the case of a Shelf Registration Statement, prepare and file with the intended methods Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the Securities Act with respect to the disposition of the Registrable Securities subject thereto for a period ending on the date on which all the Registrable Securities held by the seller Demand Shareholders cease to be Registrable Securities;
(iv) if requested by the lead managing underwriter(s), if any, or sellers thereof set forth 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 registration statementinformation 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 Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6.7(a)(iv) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Applicable Law;
(cv) furnish, without charge, furnish to each Participating Holder the Selling Shareholders and each underwriter, if any, of the securities covered being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Shareholders and underwriter underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Shareholders;
(Splitco hereby consenting vi) use commercially reasonable efforts to register or qualify or cooperate with the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the offering and sale of the Registrable Securities covered by registration or qualification (or exemption from such registration statement or prospectus);
(dqualification) use its reasonable best efforts to register or qualify the of such Registrable Securities covered by such registration statement under such other securities laws or state “blue sky” laws of such jurisdictions as the Selling Shareholders and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by such Selling Shareholders shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Selling Shareholders, except that in no event the Company shall Splitco not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), vi) be required obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to general service of process in any such jurisdiction;
(evii) promptly notify use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Common Stock) to be listed on each Participating Holder securities exchange on which shares of Common Stock are then listed;
(viii) use commercially reasonable efforts to provide and each 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 of shares of Common Stock by the Company and use its commercially reasonable 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 underwriterunderwriter(s), if any 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 any underwriting agreement has been entered into, the same shall contain customary indemnification provisions and procedures with respect to all parties to be indemnified pursuant to Section 6.10, 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 underwriter(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 commercially reasonable efforts to obtain for the underwriter(s) (A) 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 underwriters and (B) “comfort” 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 included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, 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 such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such PersonRepresentative, confirm underwriter, attorney, agent or accountant in connection with such notice registration statement; provided, however, that the Company shall not be required to provide any information under this Section 6.7(a)(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 privilege that was applicable to such information or (B) 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 is sought in a court of competent jurisdiction or by another Governmental Entity, give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xii) as promptly as practicable notify in writing the Selling Shareholders and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 6.7(a)(ix) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxiii) use its commercially reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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, subject to the requirements of Section 6.7(a)(vi), 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 (xiii) 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, in each case, as promptly as reasonably practicable;
(mxiv) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing 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;
(nxv) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in cooperate with each case, any successor thereto, and the requirements of the marketing process) in the marketing 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 underwritten offeringfilings required to be made with FINRA;
(oxvi) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reghave appropriate off
Appears in 2 contracts
Sources: Transaction Agreement (Plug Power Inc), Transaction Agreement (Plug Power Inc)
Registration Procedures. If and whenever Splitco the Company is required by to register the provisions of this Agreement to effect or cause offer and sale under the registration Securities Act of any Registrable Securities under pursuant to the Securities Act terms of this Agreement, the Company shall take all such actions as provided in this Agreement (or use best efforts or reasonable best efforts are reasonably necessary to accomplish the same), Splitco shall, cause such registration to be effected as expeditiously as possible, including the following:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration any 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the offer and sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution of such Registrable Securities (including, without limitation, a Partner Distribution), and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable no later than ten (10) days before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including, without limitation, documents that would be incorporated or before sending a response deemed to an SEC comment letter prior be incorporated therein by reference), the Company shall furnish or otherwise make available to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment comments of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessaryHolders, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and managing underwriters. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including, without limitation, such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders of 66 2/3% of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company and its counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in accordance with force) under the intended methods of disposition by the seller or sellers thereof set forth in such registration statementSecurities Act; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers Holder of Registrable Securities and that has been included in a Registration Statement for a Shelf Registration may request that such Holder’s Registrable Securities be removed from such Registration Statement, in which event the Manager, if any, of Splitco’s reasonable determination that Company shall promptly either withdraw such Registration Statement or file a post-effective amendment to a registration statement would be appropriate;such Registration Statement removing such Registrable Securities.
(c) furnish, without charge, to Notify each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus Registrable Securities included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Acta Registration Statement, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder its counsel and the managing underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writingpromptly, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, ) confirm such notice in writing: , (i) when the registration statement a Prospectus or any other Offering Document Prospectus supplement or post-effective amendment related to such Registration Statements has been filed with the SEC filed, and, with respect to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; , (ii) of any comment letter or notice from the SEC that there will be a review of such Registration Statement and promptly provide such Holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by the Company in connection therewith, (iii) of any request by the SEC or any other Federal or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto Prospectus or for additional information; , (iiiiv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings for that purpose; , (ivv) if at any time the representations and warranties of the Company contained in any applicable agreement (including, without limitation, any underwriting agreement) contemplated by Section 5(o) below cease to be true and correct, (vi) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of such Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose; , and (vvii) of the existence occurrence of any fact event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such Registration Statement, Prospectus or documents so that, in the Offering Document or case of the information conveyed to Registration Statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements therein, in light of the circumstances under which they were made, not misleading; , and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(vid) if at Use its reasonable best efforts to obtain the withdrawal of any time order suspending the representations and warranties contemplated by any underwriting agreement, securities sale agreementeffectiveness of a Registration Statement, or other similar agreement, relating to the offering shall cease to be true and correct lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in all material respects; andany jurisdiction.
(e) If requested by the managing underwriters, if any, or any Holder of Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the notification relates managing underwriters, if any, and such Holders may reasonably request in order to an event described in clause permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request.
(v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish f) Furnish or make available to each such seller Holder of Registrable Securities included in a Registration Statement, its counsel and each managing underwriter, if any, a reasonable number of without charge, at least five (5) conformed copies of such Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested by such holder, counsel or underwriter).
(g) Deliver to each Holder of Registrable Securities included in a prospectus supplemented Registration Statement, its counsel and the underwriters, if any, without charge, as many copies of the related Prospectus or amended Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of such Registrable Securities; and the Company, subject to the last paragraph of this Section 5, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of such Holders and the underwriters, if any, in connection with the offer and sale of such Registrable Securities.
(h) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Holders of such Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests 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 to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities included in a Registration Statement and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing such Registrable Securities, after receiving written representations from each such Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with such Registration Statement, and enable certificates representing such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) Business Days prior to any sale of such Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to deliver such certificates.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of the business of the Holder of such Registrable Securities, in which case the Company will cooperate in all reasonable respects with the filing of such registration and the granting of such approvals, as may be necessary to enable such Holders or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 5(c)(vii) above, prepare a supplement or post-effective amendment to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of a Registration Statement, provide a CUSIP number for the registration statement (Registrable Securities being offered and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 sold thereunder;.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement a Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct such transfer agent (A) Use its reasonable best efforts to release, cause all Registrable Securities covered by a Registration Statement to be authorized to be quoted on the NASDAQ Global Market or listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the NASDAQ Global Market or listed on such effective dateexchange, any stop transfer order with respect to as the certificates with respect to the Registrable Securities being soldcase may be.
(o) Enter into such agreements (including, without limitation, an underwriting agreement in form, scope and (Bsubstance as is customary in underwritten offerings) to furnish certificates without restrictive legends representing ownership of the shares being sold, in and take all such denominations other actions reasonably requested by the sellers Holders of a majority of the Registrable Securities or any included in a Registration Statement (including those reasonably requested by the managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition offer and sale of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not such Registration Statement includes an underwritten offering, (it being understood that i) make such representations and warranties to the Holders of the Registrable Securities which included in such Registration Statement and the underwriters, if any, in form, substance and scope as are customarily made by issuers to be distributed by any underwriters shall be parties in underwritten offerings, and, if true, confirm the same if and when requested, (ii) furnish to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants opinions of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a negative assurance letter to the Company and updates thereof (which counsel, opinions and letter (in form, scope and substance, in the case of such opinions and such letter) shall be reasonably satisfactory to such Holders, the managing underwriters, if any, and counsels to such Holders), addressed to each such Holder and each of the underwriters, if any, covering the matters customarily covered in opinions and negative assurance letters requested in underwritten offerings and such other matters as may be reasonably requested by such Holders, counsel and underwriters, (iii) obtain “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering such matters as are customarily covered by Holder (unless such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, which form and substance shall be reasonably acceptable to such Holders, (iv) obtain a report of the independent petroleum engineers of the Company relating to the Participating Holdersoil and natural gas reserves of the Company, such report to be in customary form and covering matters customarily covered in such reports, (v) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section and (iivi) furnish to each Participating Holder upon its request deliver such documents and to each underwritercertificates as may be reasonably requested by any such Holder, such Holder’s counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 5(o)(i) above and to evidence compliance with the conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Make available for inspection by the Holders of Registrable Securities included in a copy Registration Statement, any underwriter participating in an offer and sale of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriterRegistrable Securities, if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its subsidiaries to supply the all information in each case reasonably requested by any such Inspector Holder, underwriter, attorney or accountant in connection with such registration statement;
(l) use its reasonable best efforts to prevent Registration Statement; provided, however, that any information that is not publicly available at the issuance or obtain the withdrawal time of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 delivery of such registration statement), and prior information shall be kept confidential by such Persons (other than disclosure by such Persons to the filing or use of any free writing prospectus, provide copies such Persons’ respective affiliates) unless (i) disclosure of such document to counsel for each Participating Holder and to each managing underwriter, if any, and make the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 information is required by court or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco administrative order or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regother legal
Appears in 2 contracts
Sources: Registration Rights Agreement (Warburg Pincus Private Equity IX, L.P.), Registration Rights Agreement (Laredo Petroleum Holdings, Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts Article II, the Company shall effect such registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as expeditiously as possible (i) shall be selected by Splitco and (ii) shallto the extent applicable, in the case of a shelf registration, Takedown):
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (excluding documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (excluding such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any registration pursuant to Section 2.1, 2.2 or 2.3 to which the Participating Holders any Holder (if such Registration Statement includes Registrable Securities of such Holder), its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its reasonable best efforts to avoid the issuance of any order suspending the effectiveness of a Registration Statement or any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, or, if issued, to obtain the withdrawal or lifting of any such order or suspension at the reasonably earliest practicable date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as reasonably practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to Section 2.5(b), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Selling Holder or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, Selling Holders to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdiction; provided, except however, that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be is not then so qualified, to (ii) subject itself to material taxation in any such jurisdiction where it is not then so subject, or to consent (iii) take any action that would subject it to general service of process in any such jurisdiction;jurisdiction where it is not then so subject.
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed Cooperate with the SEC and, with respect to Selling Holders and the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (vmanaging underwriter(s), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fk) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gl) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iim) instruct Use its reasonable best efforts to cause all Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed.
(n) Enter into such effective dateagreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, sold in such denominations requested connection therewith or by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriter(s), if applicableany, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Selling Holders and the managing underwriter(s), if any, with respect to the business of the Registrable Securities which are Company and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession or such action is otherwise inconsistent with the then current practice in the accounting profession) and each caseof the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in connection with underwritten public offerings, which opinion (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and letter shall be dated procedures, except as otherwise agreed by the dates such opinions Company and “cold comfort” letters are customarily dated Holders of a majority of the Registrable Securities being sold in connection therewith and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and to (v) deliver such documents and certificates as may be reasonably requested by the Participating HoldersHolders of a majority of the Registrable Securities being sold in connection therewith, their counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriter(s), if any, a copy to evidence the continued validity of the representations and warranties 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 opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(ko) deliver promptly to counsel Upon execution of a customary confidentiality agreement, make available for each Participating Holder and to each inspection by a representative of the Selling Holders, the managing underwriterunderwriter(s), if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its Subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lp) Otherwise use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness comply with all applicable rules and regulations of the registration statementSEC and any applicable national securities exchange, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each caseand make available to its security holders, as promptly soon as reasonably practicable;
practicable (mbut not more than 18 months) provide a CUSIP number for all Registrable Securities, not later than after the effective date of the registration statement;
(n, an earnings statement which shall satisfy the provisions of Section 11(a) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regAct.
Appears in 2 contracts
Sources: Master Commutation, Release and Restructuring Agreement (Security Capital Assurance LTD), Registration Rights Agreement (Xl Capital LTD)
Registration Procedures. (a) If and whenever Splitco 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 this Agreement (or use best efforts or reasonable best efforts Section 2 and Section 3 hereof, the Company shall effect such registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as promptly as practicable:
(i) Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement (other than in connection with a Piggyback Registration initial filing) or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference but excluding any amendment or supplement solely to add or change selling stockholders named therein), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(iii) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the applicable period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, .
(iii) Notify each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements selling holder of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and the managing underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writingpromptly, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, ) confirm such notice in writing: , (i1) when the registration statement a Prospectus or any other Offering Document post-effective amendment has been filed with the SEC filed, and, with respect to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; , (ii2) of any comment letter or request by the SEC or any other Federal or state securities governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus related thereto Prospectus or for additional information; , (iii3) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement a Registration Statement or the initiation of any proceedings for that purpose; , (iv4) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(a)(xi) below cease to be true and correct, (5) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose; , and (v6) of the existence happening of any fact event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such Registration Statement, Prospectus or documents so that, in the Offering Document or case of the information conveyed to Registration Statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein 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.
(iv) Use its 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 reasonably earliest practical date.
(v) If requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, or the Stockholders participating in a Shelf Registration Statement, promptly include in a Prospectus or post-effective amendment such information as the managing underwriters, if any, and such holders or Stockholders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus or such post-effective amendment as soon as practicable after the Company has received such request; and provided, however, that the Company shall not be required to take any actions under this Section 5(a)(v) that are not, in the opinion of the Company, in compliance with applicable law.
(vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, Furnish or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish make available to each such seller selling holder of Registrable Securities and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter), and such other documents as the selling holders of Registrable Securities may reasonably request in connection with the distribution of the Registrable Securities.
(vii) Prior to any Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing 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 to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it is not then so qualified or (2) take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject.
(viii) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable number respects with the filing of copies such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(ix) Upon the occurrence of any event contemplated by Section 5(a)(iii)(6) above, prepare a prospectus supplemented supplement or amended post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fx) Use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on The New York Stock Exchange or any other securities exchange on which shares of the particular class of Registrable Securities are at that time qualified or listed.
(xi) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities, and in the case of an Underwritten Offering, (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if true, confirm the same if and when requested, (2) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and 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 counsel and underwriters, (3) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants or, if applicable, independent registered public accounting firm, of the Company that have or has certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with Underwritten Offerings, (4) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section and (5) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 5(a)(xiii)(1) 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.
(xii) In connection with each Demand Registration and each Fully Marketed Underwritten Offering, cause there to occur Full Cooperation.
(xiii) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (1) disclosure of such information is required by court or administrative order, (2) disclosure of such information, in the opinion of counsel to such Person, is required by law, or (3) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (1) or (2) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Company or its subsidiaries in violation of law.
(xiv) Otherwise comply (and continue to comply) in all material respects with all applicable rules and regulations of under the SEC (includingSecurities Act, 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 including making available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), holders an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive 12 months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;thereunder (or any similar provision then in force).
(gb) The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company in writing such information required in connection with such registration regarding such seller and the distribution of such Registrable Securities as the Company may, from time to time, reasonably request in writing and the Company may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information within a reasonable time after receiving such request.
(ic) cause all Each holder of Registrable Securities agrees if such holder has Registrable Securities covered by such Registration Statement that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(a)(iii)(2), 5(a)(iii)(3), 5(a)(iii)(4) or 5(a)(iii)(5) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, Registration Statement or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regPros
Appears in 2 contracts
Sources: Registration Rights Agreement (Tumi Holdings, Inc.), Registration Rights Agreement (Tumi Holdings, Inc.)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder provided herein (including by means of a shelf registration statement pursuant to such registration statement shall request, Rule 415 under the Securities Act providing for an offering to be made on a continuous basis if so requested and no less than 180 days, (if the Company is then eligible to use Form S-3 or other applicable Form); provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment thereto has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto, when the same has become effective, (ii) of any request by the 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter);
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(vi) above, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees cause all shares (i) to be offered by the Company in connection with the initial Public Offering to be authorized to be listed on a national securities exchange and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance (ii) of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement (taking or, if such registration is the initial Public Offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten (10) business days following the effectiveness of such Registration Statement);
(o) enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, 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, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the requirements same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of the marketing process) in the marketing of such Registrable Securities in any underwritten offering;
(o) promptly prior opinions of counsel to the filing of any document Company and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent registered public accountants of the Company (and, if necessary, any Subsidiaryother independent registered public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, andor are required to be, included in each case, any successor thereto, reasonably available for discussion of such document and make such changes the Registration Statement) who have certified the financial statements included in such document concerning Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the Participating Holders prior accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the filing thereof effect set forth in Section 8 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 thereunder and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel for such Participating Holders or underwriters may reasonably request (providedand the managing underwriters, thatif any, notwithstanding to evidence the foregoing, in no event shall Splitco be required continued validity of the representations and warranties made pursuant to file Section 6(o)(i) above and to evidence compliance with any document with the SEC which customary conditions contained in the view of Splitco underwriting agreement or its counsel contains an untrue statement of a material fact other agreement entered into by the Company. The above shall be done at each closing under such underwriting or omits similar agreement, or as and to state a material fact the extent required to be stated therein or necessary to make any statement therein not misleading)thereunder;
(p) furnish to counsel make available for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regin
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncor Electric Delivery Co LLC), Contribution and Subscription Agreement (Oncor Electric Delivery Co LLC)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof (including, without limitation, a Partner Distribution), and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and filed. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its 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.
(e) If requested by the managing underwriters, if any, or the holders of a majority of the holders 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration occurrence of any event contemplated by Section 6(c)(vi) above, prepare a supplement or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required post-effective amendment to qualify the Registration Statement or a supplement to do business as a foreign corporation in the related Prospectus or any jurisdiction where it would not, but for the requirements of this paragraph (d), be required document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be authorized to be quoted on the NASDAQ National Market or listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the NASDAQ National Market or listed on such effective dateexchange, any stop transfer order with respect to as the certificates with respect to case may be.
(o) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters, if any, with respect to the business of the Registrable Securities which are Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters shall be parties to any such underwriting agreement in underwritten offerings, and, if true, confirm the same if and maywhen requested, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the Participating Holders, effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (iiv) furnish to each Participating Holder upon its request deliver such documents and to each underwritercertificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters, if any, a copy to evidence the continued validity of the representations and warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably Make available for inspection by counsel for each Participating Holdera representative of the selling holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (li) use its reasonable best efforts disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law, or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in no event shall Splitco be required to file any document with securities of the SEC which in the view of Splitco Company or its counsel contains an untrue statement subsidiaries in violation of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);law.
(pq) furnish to counsel for each Participating Holder upon its request Comply with all applicable rules and to each managing underwriter, without charge, upon request, at least one conformed 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 regregulati
Appears in 2 contracts
Sources: Registration Rights Agreement (Targa Resources Corp.), Registration Rights Agreement (Targa Resources Investments Inc.)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form distribution thereof, make all required filings with FINRA and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including any free writing prospectuses under Rule 433 under the Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Demand Party, the Holders of a majority of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law;
(ib) subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement Registration Statement continuously effective for during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all the Registrable Securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration Registration Statement;
(c) notify each selling Holder of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities , its counsel and the Managermanaging underwriters, if any, of Splitco’s reasonable determination that 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 or any Free Writing Prospectus has been filed, and, with respect to a registration 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 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would be appropriate;constitute material non-public information);
(cd) furnishuse its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, without charge, to each Participating Holder and each underwriteror 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the securities covered by such registration statement such number of copies of such registration statement, each amendment then issued and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the outstanding Registrable Securities Act, each free writing prospectus utilized being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement or post-effective amendment such information as the managing underwriters, in all material respects in conformity with the requirements of the Securities Act if any, or of the rules such Demand Party or regulations thereunder, and other documentsHolders, as such seller and underwriter the case may be, may reasonably request in order to facilitate permit the public sale intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or other disposition such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto;
(dg) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction 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);
(h) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or underwriterthe managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the Registrable Securities in such jurisdictions (including keeping such registration intended method or qualification in effect for so long as such registration statement remains in effect)methods thereof, except that in no event shall Splitco as may be required to qualify to do business solely as a foreign corporation consequence of the nature of such selling Holder’s business, in any jurisdiction where it would not, but for which case the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation Company will cooperate in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed all reasonable respects with the SEC andfiling of such Registration Statement and the granting of such approvals, with respect as may be necessary to enable the Offering Document, when the same has become effective; (ii) of any comment letter seller or request by the SEC or state securities authority for amendments or supplements to the registration statement sellers thereof or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriterunderwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement (ii) instruct and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(Am) use its reasonable best efforts to releasecause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which the Common Stock is then listed, on such effective date, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Holders of the such Registrable Securities which are 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 distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered issuers to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestif true, 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 confirm the same if and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriterwhen requested, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(lii) use its reasonable best efforts to prevent furnish to the issuance or obtain selling Holders and the withdrawal underwriters, if any, opinions of any order suspending outside counsel to the effectiveness Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to each of the registration statementunderwriters, or if any, covering the lifting of any suspension of the qualification of any of the Registrable Securities for sale matters customarily covered in any jurisdictionopinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(niii) use its reasonable best efforts to make available its employees obtain “cold comfort” letters and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to updates thereof from the underwriters (taking into account the needs independent certified public accountants of the businesses of SplitcoCompany (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, and the requirements subsidiary of the marketing process) Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the marketing Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling Holder of Registrable Securities in any underwritten offering;
(ounless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) promptly prior to and each of 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 or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, such letters to be in customary form and make covering matters of the representatives of Splitcotype customarily covered in “cold comfort” letters in connection with underwritten offerings, any Subsidiary(iv) if an underwriting agreement is entered into, and, in each case, any successor thereto, reasonably available for discussion of such document the same shall contain indemnification provisions and make such changes in such document concerning the Participating Holders prior procedures substantially to the filing thereof as counsel for such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, effect set forth in no event shall Splitco be required Section 8 hereof with respect to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required all parties to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regindemnified pursua
Appears in 2 contracts
Sources: Registration Rights Agreement (US Foods Holding Corp.), Investment Agreement (US Foods Holding Corp.)
Registration Procedures. If and whenever Splitco Whenever Arsenal is required by the provisions of this Agreement to use its commercially reasonable efforts to effect or cause the registration of any offering of Registrable Securities under the Securities Act as provided in this Agreement (or Section 2, Arsenal shall use best efforts or its commercially reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco shalland pursuant thereto Arsenal shall use its commercially reasonable efforts to cooperate in the sale of the Registrable Securities and shall use its commercially reasonable efforts to, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or Arsenal in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto (excluding documents that would be incorporated or deemed to be incorporated therein by reference (other than documents prepared in connection with the Registration Statement or the sale of Registrable Securities)), Arsenal shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingManchester, Splitco will furnish to one its counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of Manchester and its counsel, and such other documents reasonably requested by Manchester and its counsel, including any and all transmittal letters or other correspondence to or received from the SEC or, to the extent relevant to the registration, any other Governmental Entity, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein (including any objections Issuer Free Writing Prospectus related thereto) and such other opportunities to any information pertaining conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to any Participating Holder Arsenal’s books and its plan of distribution records, officers, accountants and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and other advisors. Arsenal shall not file any Offering Document such Registration Statement or Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto with respect to any registration required pursuant to Section 2.1 to which the Participating Holders Manchester, its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, provided, that, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of Arsenal, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments to each Registration Statement and, subject to the deferral and supplements (includingsuspension provisions of Section 2.1(e), without limitation, any reports required use its commercially reasonable efforts to cause such Registration Statement to be filed pursuant continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the Exchange Act) disposition of all Registrable Securities covered by such Registration Statement, and cause the related Prospectus to such registration statement and the be supplemented by any prospectus used in connection therewith supplement or Issuer Free Writing Prospectus as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify Manchester and the managing underwriter(s), each free writing prospectus utilized if any, as promptly as reasonably practicable, and (if requested by any such Person) confirm such notice in connection therewithwriting, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 Arsenal becomes aware at any time that the representations and warranties of Arsenal contained in any underwriting agreement, securities sale agreement, or other similar agreement relating to the offering cease to be true and correct in any material respect, (v) of the receipt by Arsenal 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 overt threatening of any proceeding for such purpose, and (vi) of the happening of any event (but not the nature or the details concerning such event) that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus so that, in each casethe 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 any Prospectus or Issuer Free Writing 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 all material respects in conformity with the requirements light of the Securities Act circumstances under which they were made, not misleading.
(d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the rules qualification (or regulations thereunderexemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or Manchester, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, Manchester or 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after Arsenal has received such request.
(f) Furnish or make available to Manchester and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements, and such other documents, as Manchester, such seller and underwriter Holders or such managing underwriter(s) may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by Securities.
(g) Deliver to Manchester and each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such seller (Splitco Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities; and Arsenal, subject to the last paragraph of this Section 2.4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by Manchester and each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with Manchester and the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Manchester or any the managing underwriterunderwriter(s), if any, reasonably requests in writing (provided, however, that Arsenal shall reasonably request not be obligated to qualify as a foreign corporation to do business under the laws of any jurisdiction in writing, which it is not then qualified to file any general consent to service of process) and do to use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriterSelling Holders to consummate the disposition of such Registrable Securities in such jurisdiction.
(i) Cooperate with Manchester and the managing underwriter(s), if any, to consummate facilitate the disposition timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such jurisdictions (including keeping denominations and registered in such registration or qualification in effect for so long names as such registration statement remains in effectthe managing underwriter(s), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, or Manchester may request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Sections 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to Manchester and the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fk) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(l) Use its commercially reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be authorized to be listed on (i) The Nasdaq National Market, so long as securities of the same class issued by Arsenal are then listed on The Nasdaq National Market and (ii) instruct such transfer agent (A) to releaseeach other national securities exchange, if any, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership which securities of the shares being sold, in such denominations requested same class issued by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;Arsenal are then listed.
(im) enter Enter into such customary agreements (including, if applicable, including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions as reasonably requested by Manchester or by the Participating Holders or the underwriters shall reasonably request in order managing underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, (it being understood that i) make such representations and warranties to the Holders managing underwriter(s), if any, with respect to the business of Arsenal and its Subsidiaries, and the Registrable Securities which are Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen customarily requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its commercially reasonable best efforts to furnish to the managing underwriter(s), if any, opinions of counsel to Arsenal and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, addressed to each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably and customarily requested by such managing underwriter(s), (iii) use its commercially reasonable efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of Arsenal (and, if necessary, any other independent certified public accountants of any Subsidiary of Arsenal or of any business acquired by Arsenal for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseof the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, in the case of such “cold comfort” letter, events subsequent same shall contain customary indemnification provisions with respect to the date of managing underwriter(s) and (v) deliver such financial statements) delivered to underwriters in underwritten public offerings, which opinion documents and letter shall certificates as may be dated reasonably requested by the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, to evidence the continued validity of the representations and warranties 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 Arsenal. The above shall be done at each closing under such underwriting or similar agreement, or as and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;extent required thereunder.
(kn) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, Cause 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and senior executive officers to use their commercially reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with support the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale covered by the Registration Statement (including, without limitation, by participation in “road shows”, holding meetings with potential investors and taking such other actions as shall reasonably be requested by the managing underwriter(s), if any).
(o) Cooperate and assist in any jurisdictionfilings required to be made with the Financial Industry Regulatory Authority and in the performance of any due diligence investigation by any underwriter(s) in an underwritten offering.
(p) Otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange, to the extent applicable to the offer and sale of Registrable Securities by the Holders from time to time in each caseaccordance with the methods of distribution set forth in the Registration Statement, and make available to its security holders, as promptly soon as reasonably practicable;
practicable (mbut not more than 18 months) provide a CUSIP number for all Registrable Securities, not later than after the effective date of the registration statement;
(n, an earnings statement which shall satisfy the provisions of Section 11(a) use its reasonable 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 businesses Securities Act. Manchester and each Selling Holder agree that, upon receipt of Splitcowritten notice from Arsenal of the happening of any event of the kind described in Sections 2.4(c)(ii), any Subsidiary(c)(iii), and(c)(iv), (c)(v) or (c)(vi) hereof, Manchester and such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until Manchester’s and such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.4(k) hereof, or until it is advised in each case, any successor theretowriting by Arsenal that the use of the applicable Prospectus may be resumed, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior to the filing has received copies of any document which is additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such Prospectus; provided, however, that Arsenal shall extend the registration statement or time periods under Section 2.1 and Section 2.2 with respect to the prospectus (after length of time that the initial filing effectiveness of a Registration Statement must be maintained by the amount of time the Holder is required to discontinue disposition of such registration statement), securities. Manchester and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regS
Appears in 2 contracts
Sources: Registration Rights Agreement (Misys PLC), Registration Rights Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 5.1, Section 5.2 or use best efforts or reasonable best efforts to accomplish Section 5.3, the same), Splitco shall, Company shall as expeditiously as possiblereasonably practicable:
(ai) prepare and file with the SEC Commission a registration statement on an appropriate to effect such registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Article V; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing an Offering Documentsuch registration statement or any amendments thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco the Company will furnish to one the Demand Shareholders which are including Registrable Securities in such registration (“Selling Shareholders”), their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managerlead managing underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes other documents reasonably requested by such 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 each prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such registration statement or prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the Participating Holders holders of a majority of Registrable Securities held by the Requesting Shareholder(s), their counsel or the underwriterslead managing underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingApplicable Law;
(iii) prepare and file with the SEC Commission such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request the terms of this Article V, and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement statement;
(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 accordance 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 methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5.6(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with Applicable Law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Shareholders and each underwriter, if any, of the securities covered being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Shareholders and underwriter underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)Selling Shareholders;
(dv) use its 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 state “blue sky” laws of such jurisdictions as the Selling Shareholders and any sellers underwriter of Registrable Securities or any managing underwriter, if any, the securities being sold by such Selling Shareholders shall reasonably request in writingrequest, and do to keep each such registration or qualification (or exemption therefrom) effective during the period such registration statement is required to be kept effective and take any and all other acts and things action which may be reasonably necessary or reasonably advisable to enable such sellers or underwriter, if any, Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)Selling Shareholders, except that in no event the Company shall Splitco not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not, not but for the requirements of this paragraph clause (d), v) be required obligated to be so qualified, to (B) subject itself to taxation in any such jurisdiction or to (C) file a general consent to general service of process in any such jurisdiction;
(evi) promptly notify use reasonable best efforts to cause such Registrable Securities to be listed on each Participating Holder and each managing underwriter, if any securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use 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;
(vii) 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;
(viii) 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 the Selling Shareholders and underwriter(s) (A) 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 Shareholders and underwriters and (B) “comfort” 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 included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, 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 such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Personrepresentative, confirm underwriter, attorney, agent or accountant in connection with such notice registration statement; provided, however, that 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 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 is sought in a court of competent jurisdiction or by another Governmental Authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xii) as promptly as practicable notify in writing the Selling Shareholders and the underwriters, if any, of the following events: (iA) when 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 other Offering Document has been filed with the SEC Free Writing Prospectus utilized in connection therewith, and, with respect to the Offering Documentregistration statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC Commission or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (vE) if at any time the representations and warranties of the existence Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 5.6(a)(ix) cease to be true and correct in any material respect; and (F) upon the happening of any fact event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such registration statement, prospectus or documents so that, in the Offering Document or case of the information conveyed to registration statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading; , and (vi) if at that in the case of the prospectus, it will not contain any time untrue statement of a material fact or omit to state any material fact necessary in order to make the representations and warranties contemplated by any underwriting agreementstatements therein, securities sale agreementin light of the circumstances under which they were made, or other similar agreementnot misleading, relating to the offering shall cease to be true and correct in all material respects; and, if at the notification relates to an event described in clause (v)request of any Selling Shareholder, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus supplemented or amended 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 made, not misleading;
(fxiii) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the 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, subject to the requirements of Section 5.6(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 this clause (xiii) 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, in each case, as promptly as reasonably practicable;
(mxiv) provide a CUSIP number for all Registrable Securities, cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not later than the effective date of the 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 lead managing 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;
(nxv) use its 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
(xvi) have appropriate officers of the Company prepare and make presentations at a reasonable best efforts to make available its employees and personnel for participation in number of “road shows” and other marketing efforts before analysts and otherwise provide reasonable assistance to rating agencies, as the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor theretocase may be, and other information meetings reasonably organized by 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regunde
Appears in 2 contracts
Sources: Shareholder Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Registration Procedures. If In connection with the registration ----------------------- obligations of the Company pursuant to and whenever Splitco is required by in accordance with Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the provisions of this Agreement Company shall use commercially reasonable efforts to effect or cause such registration to permit the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Company shall as expeditiously as possible (ibut subject to Sections 2 and 3 hereof):
(a) shall be selected by Splitco and At least ten (ii10) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable business days before filing an Offering Documenta Registration Statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders who are participating in such Registration Statement and the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel Holders and such underwriters (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereoftheir respective counsel), and Splitco shall make and, in the changes reasonably requested by such counsel and shall case of a Demand Registration, the Company will not file any Offering Document Registration Statement or amendment thereto or any prospectus or any supplement thereof to which the Participating Registering Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to ;
(b) prepare and file any document with the SEC which in a Registration Statement for the view of Splitco or its counsel does not comply with the requirements sale of the Securities Act Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, subject to the rules of regulations thereunder Company's right to terminate or contains an untrue statement of abandon a material fact or omits registration pursuant to state a material fact required Section 3(c) hereof, use commercially reasonable efforts to be stated therein or necessary cause such Registration Statement to make any statement therein not misleadingbecome effective and remain effective as provided herein;
(ic) prepare and file with the SEC such amendments (including post- effective amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement, and such supplements to the prospectus used in connection therewith related Prospectus, as may be necessary required by the rules, regulations or instructions applicable to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect to during the sale or other disposition of all Registrable Securities covered by such registration statement applicable period in accordance with the intended methods of disposition specified by the seller or sellers thereof set forth in Holders of the Registrable Shares covered by such registration statementRegistration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that the Company shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; provided, however, that Splitco may discontinue before filing a Registration Statement or Prospectus, or any registration of its securities that cease amendments or supplements thereto (other than reports required to be Registrable Securities; and (ii) provide notice filed by it under the Exchange Act), the Company shall furnish to such sellers the Holders of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities Shares covered by such registration statement such number of Registration Statement and their counsel for review and comment, copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order documents required to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)be filed;
(d) use its reasonable best efforts to register or qualify notify the Holders of any Registrable Securities Shares covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, Registration Statement promptly and (if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(erequested) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: , (i) when the registration statement a Prospectus or any other Offering Document Prospectus supplement or post-effective amendment has been filed with the SEC filed, and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; , (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto Prospectus or for additional information; information regarding such Holders, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings for that purpose; , (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Shares for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding for such purpose; , and (v) of the existence happening of any fact event that requires the making of which Splitco becomes aware which results any changes in the Offering Document such Registration Statement, Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact documents incorporated or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make by reference so that they will not contain 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading:
(e) use commercially reasonable efforts to obtain the withdrawal 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 Registrable Shares for sale in any jurisdiction in the United States;
(f) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, as such Holder may reasonably request in order to facilitate the disposition of the Registrable Shares of such Holder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(g) prior to any public offering of Registrable Shares covered by such Registration Statement, use commercially reasonable efforts to register or qualify such Registrable Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Holders of such Registrable Shares shall reasonably request in writing; provided, however, that the Company shall in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then subject;
(h) upon the occurrence of any event contemplated by paragraph 5(d)(v) above, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made made, not misleading;
(fi) use commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be listed on each securities exchange or automated interdealer quotation system, if any, on which similar securities issued by the Company are then listed or quoted;
(j) use commercially reasonable efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, securities exchange or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderregulatory body;
(gk) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 before the effective date of such registration statement; (ii) instruct such Registration Statement, provide the transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian Company for the Registrable SecuritiesShares with printed certificates for the Registrable Shares covered by such Registration Statement which are in a form eligible for deposit with The Depository Trust Company;
(il) enter into if such customary agreements (including, if applicable, offering is an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestoffering, make reasonably available for inspection by counsel for each Participating Holderany Holder of Registrable Shares included in such Registration Statement, by counsel for any underwriter participating in any disposition to be effected offering pursuant to such registration statement Registration Statement, and by any attorney, accountant or other agent retained by any Participating such Holder or any such underwriter, underwriter (collectively, the “"Inspectors”"), all pertinent such financial and other recordsrecords and other information, pertinent corporate documents and properties of Splitco any of the Company and its subsidiaries and affiliates (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityresponsibilities; provided, however, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspector in writing are confidential shall not be disclosed to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company, which agreement shall permit the disclosure of such Records in connection such Registration Statement or the related Prospectus if either (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; provided however, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such registration statement;
(l) use its reasonable best efforts Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the Company's expense, may undertake appropriate action to prevent the issuance or obtain the withdrawal disclosure of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;such Records; and
(m) if such offering is an underwritten offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, and in such connection, (i) use commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holders of the Registrable Shares being sold), addressed to each selling Holder of Registrable Shares covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Registrable Shares covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings (iii) if requested and if an underwriting agreement is entered into, provide a CUSIP number indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder. In addition, the Company agrees (i) not to effect any public sale or distribution of its Common Stock, par value $.01 per share, or any securities convertible into or exchangeable or exercisable for all Registrable Securitiessuch securities, not later than during the 10 days prior to the effective date of any underwritten Demand or Piggyback Registration and until the registration statement;
earliest of (nA) use its reasonable 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 abandonment of such offering, or (B) the termination of any "hold back" period reasonably requested by the underwriters (taking into account with exceptions for issuances pursuant to outstanding options, warrants, and convertible or exchangeable securities, pursuant to employee and dividend reinvestment plans, and such other exceptions as are customary or agreed with the needs managing underwriter). The Company may require each Holder of Registrable Shares covered by a Registration Statement to furnish such information regarding such Holder and such Holder's intended method of disposition of such Registrable Shares as it may from time to time reasonably request in writing. If any such information is not furnished within a reasonable period of time after receipt of such request, the Company may exclude such Holder's Registrable Shares from such Registration Statement. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon receipt of any notice from the Company of the businesses happening of Splitcoany event of the kind described in Section 5(d)(ii), 5(d)(iii), 5(d)(iv) or 5(d)(v) hereof, that such Holder shall forthwith discontinue disposition of any SubsidiaryRegistrable Shares covered by such Registration Statement or the related Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(h) hereof, or until such Holder is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be ------ resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such Prospectus (such period during which disposition is discontinued being an "Interruption Period") and, in each caseif requested by ------------------- the Company, any successor thereto, and the requirements Holder shall deliver to the Company (at the expense of the marketing processCompany) all copies then in its possession, other than permanent file copies then in such holder's possession, of the marketing Prospectus covering such Registrable Shares at the time of receipt of such request. Each Holder of Registrable Securities Shares covered by a Registration Statement further agrees not to utilize any material other than the applicable current preliminary prospectus or Prospectus in any underwritten offering;
(o) promptly prior to connection with the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing offering of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regRegistrable Shares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Grupo Televisa S A), Registration Rights Agreement (General Motors Corp)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or Section 4, the Company shall use best efforts or its reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco shalland pursuant thereto the Company shall cooperate in the sale of the securities and shall use its reasonable best efforts, as expeditiously promptly as possiblepracticable to the extent applicable, to:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (if such Registration Statement is not an Automatic Shelf Registration Statement), (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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Shareholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Company may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) use its reasonable best efforts prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions jurisdiction; provided, however, that the Company will not be required to (including keeping such registration or qualification i) qualify generally to do business in effect for so long as such registration statement remains in effect), except that in no event shall Splitco any jurisdiction where would not otherwise be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph Agreement or (d), be required to be so qualified, to ii) take any action that would subject itself it to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or Registration Statement cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, and the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from customary due diligence review, make available for inspection by a representative of the independent public accountants who have certified Splitco’s financial statements (and/or selling holders of Registrable Securities, any other financial statements) included or incorporated by reference underwriter participating in any such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case disposition of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its subsidiaries, as shall be reasonably necessary and cause the officers, directors and employees of the Company and its subsidiaries to enable them to exercise their supply all information and participate in customary due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information sessions in each case reasonably requested by any such Inspector representative, underwriter, counsel or accountant in connection with such registration statement;
Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons except (li) use where disclosure of such information is requested or legally compelled (in either case pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory body or pursuant to a civil investigative demand or similar judicial process), (ii) where such information is or becomes generally known to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement, (iii) where such information (A) was known to such Offering Persons on a nonconfidential basis (prior to its disclosure by the Company) from a source other than the Company that, after reasonable best efforts inquiry, is entitled to prevent disclose such information and is not bound by any contractual, legal or fiduciary obligation of confidentiality to the issuance or obtain Company with respect to such information, (B) was in the withdrawal of any order suspending the effectiveness possession of the registration statement, Offering Persons on a nonconfidential basis prior to its disclosure to the Offering Persons by the Company or (C) is subsequently developed by the lifting Offering Persons without using all or any portion of any suspension of the qualification of such information or violating any of the Registrable Securities obligations of such Persons under this Agreement or (iv) for disclosure in connection with any suit, arbitration, claim or litigation involving this Agreement or against any Offering Person under federal, state or other securities laws in connection with the offer and sale in of any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities. In the case of a proposed disclosure pursuant to (i) (or, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, unless such Person 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes Company are adversaries in such document concerning the Participating Holders prior to the filing thereof as counsel for suit, arbitration, claim or litigation, (iv)) above, such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event Person shall Splitco be required to file any document give the Company written notice of the proposed disclosure prior to such disclosure and to cooperate with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon requestCompany, at least one conformed copy of the registration statement and Company’s cost, in any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, effort the prospectus contained in such regCompany undertakes to obtain a protective o
Appears in 2 contracts
Sources: Registration Rights Agreement (Signet Jewelers LTD), Investment Agreement (Signet Jewelers LTD)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material nonpublic information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Corporation may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format, and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment Public Offering, but in any other such sale, within ten business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(vi) above, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein by reference or necessary to make file 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iin) instruct use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(o) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities (it being understood that and the Holders underwriters, if any, with respect to the business of the Registrable Securities which are Corporation and its subsidiaries, the Registration Statement, the Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters shall be parties to any such underwriting agreement in underwritten offerings, and, if true, confirm the same if and maywhen requested, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Corporation and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each case, in customary form and covering selling holder of Registrable Securities (unless such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the Participating Holders, effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (iiv) furnish deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to each Participating Holder upon its request such Registration Statement, their counsel and to each underwriterthe managing underwriters, if any, a copy to evidence the continued validity of the representations and warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such opinion underwriting or similar agreement, or as and letter addressed to such underwriterthe extent required thereunder;
(kp) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holdera representative of the selling holders of Registrable Securities, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorneys or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Corporation and its subsidiaries and cause the officers, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regdirecto
Appears in 2 contracts
Sources: Registration Rights Agreement (Gardner Denver Holdings, Inc.), Registration Rights Agreement (Gardner Denver Holdings, Inc.)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to use its efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and, upon execution of a customary confidentiality agreement, such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any registration pursuant to Section 2.1 or 2.2 to which the Participating Holders Holders’ Representative, its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.3(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to Section 2.4(b), hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities Selling Holder or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.3(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed, and use its reasonable best efforts to maintain any such effective datelisting in effect.
(o) Enter into such agreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, sold in such denominations requested connection therewith or by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriter(s), if applicableany, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Selling Holders and the managing underwriter(s), if any, with respect to the business of the Registrable Securities which are Company and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, in the case of such “cold comfort” letter, events subsequent same shall contain indemnification provisions and procedures substantially to the date effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of such financial statements) delivered to underwriters a majority of the Registrable Securities being sold in underwritten public offerings, which opinion connection therewith and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersmanaging underwriter(s), if any, and to (v) deliver such documents and certificates as may be reasonably requested by the Participating HoldersHolders of a majority of the Registrable Securities being sold in connection therewith, their counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriter(s), if any, a copy to evidence the continued validity of the representations and warranties 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 opinion underwriting or similar agreement, or as and letter addressed to such underwriter;the extent required thereunder.
(kp) deliver promptly to counsel Upon execution of a customary confidentiality agreement, make available for each Participating Holder and to each inspection by a representative of the Selling Holders, the managing underwriterunderwriter(s), if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its Subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
covered by the Registration Statement (m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriterincluding, without chargelimitation, upon request, at least one conformed 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 regpart
Appears in 2 contracts
Sources: Exchange Agreement (Americredit Corp), Registration Rights Agreement (Americredit Corp)
Registration Procedures. If and whenever Splitco 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 this Agreement (Articles 1 and 2 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form distribution thereof, make all required filings with FINRA and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including any free writing prospectuses under Rule 433 under the Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein other than any amendment or supplement through incorporation of any report filed under the Exchange Act) with respect to a Demand Registration to which the Participating Demand Party, the Holders of a majority of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) subject to Section 2.5, prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement Registration Statement continuously effective for during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all the Registrable Securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus 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 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3.1(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that Splitco the Company shall not be required to take any actions under this Section 3.1(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may discontinue any registration reasonably request from time to time in connection with the distribution of its securities that cease to be the Registrable Securities; and (ii) provide notice the Company, subject to such sellers the last paragraph of Registrable Securities and the Managerthis Article 3, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dg) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction 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);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or underwriterthe managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the Registrable Securities in such jurisdictions (including keeping such registration intended method or qualification in effect for so long as such registration statement remains in effect)methods thereof, except that in no event shall Splitco as may be required to qualify to do business solely as a foreign corporation consequence of the nature of such selling Holder’s business, in any jurisdiction where it would not, but for which case the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation Company will cooperate in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed all reasonable respects with the SEC andfiling of such Registration Statement and the granting of such approvals, with respect as may be necessary to enable the Offering Document, when the same has become effective; (ii) of any comment letter seller or request by the SEC or state securities authority for amendments or supplements to the registration statement sellers thereof or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriterunderwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 3.1(c)(vi) above, promptly prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading; provided, however, that the Company may defer such supplement or amendment for a period not to exceed sixty (60) days, not more than once in any 180-day period, for any of the reasons set forth in Section 2.4 hereof;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement (ii) instruct and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(Am) use its reasonable best efforts to releasecause all shares of Registrable Securities covered by such Registration Statement to be listed on the Nasdaq or other national securities exchange on which the Common Stock is then listed, on such effective date, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or Nasdaq, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Holders of the such Registrable Securities which are 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 distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered issuers to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestif true, 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 confirm the same if and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriterwhen requested, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(lii) use its reasonable best efforts to prevent furnish to the issuance or obtain selling Holders and the withdrawal underwriters, if any, opinions of any order suspending outside counsel to the effectiveness Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to each of the registration statementunderwriters, or if any, covering the lifting of any suspension of the qualification of any of the Registrable Securities for sale matters customarily covered in any jurisdictionopinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(niii) use its reasonable best efforts to make available its employees obtain “cold comfort” letters and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to updates thereof from the underwriters (taking into account the needs independent certified public accountants of the businesses of SplitcoCompany (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, and the requirements subsidiary of the marketing process) Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the marketing of Registrable Securities Registration Statement) who have certified the financial statements included 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)Registration Statement, and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and addressed to each managing underwriterselling Holder (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, and make the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required letters to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request in customary form and to each managing underwriter, without charge, upon request, at least one conformed copy covering matters of the registration statement and any post-effective amendments or supplements theretotype customarily covered in “cold comfort” letters in connection with underwritten offerings, including financial statements and schedules, all documents incorporated therein by reference(iv) if an underwriting agreement is entered into, the prospectus contained in such regsame shall contain indemnificati
Appears in 2 contracts
Sources: Registration Rights Agreement (Lordstown Motors Corp.), Registration Rights Agreement (Lordstown Motors Corp.)
Registration Procedures. If and whenever Splitco is required by The Company shall cooperate with any member of the provisions Holder Affiliated Group in the sale of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts pursuant to accomplish the same)Section 2 and Section 3, Splitco and shall, as expeditiously soon as possiblereasonably practicable:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 securities to form be included thereon in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall and, if such Registration Statement is not automatically effective upon filing, use its reasonable best efforts to cause such registration statement Registration Statement to become be declared effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including a free writing prospectus under Rule 433 (a “Free Writing Prospectus”)) and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed in connection with an Offering Document, or before sending a response to an SEC comment letter Underwritten Shelf Takedown prior to the effectiveness of the initial Registration Statement or the filing of a Prospectus with respect to any such filingrequested Underwritten Shelf Takedown, Splitco will the Company shall furnish or otherwise make available to one the Holder, its counsel for and the Holders participating in the planned offering (selected by the Participating Holdersmanaging underwriter(s) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)Persons, and Splitco shall make the changes such other documents reasonably requested by such counsel Persons, including any comment letter from the SEC, and, if requested by such Persons, provide such Persons reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall include comments to any Registration Statement and any amendments or supplements thereto from the Holder, its counsel, or the managing underwriters, as reasonably requested. The Company shall not file any Offering Document Registration Statement, Prospectus, Free Writing Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to an Underwritten Shelf Takedown to which the Participating Holders Holder, its counsel or the underwritersmanaging underwriter(s) objects in writing, if any, shall reasonably object, provided, that, notwithstanding unless the foregoing, in no event shall Splitco be required Company is advised by counsel that such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(b) (i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement Registration Statement continuously effective for during the period provided herein, (ii) comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement and (iii) cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration statement Registration Statement, and as so supplemented, to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateRegistration Statement;
(c) furnishnotify the Holder, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder its counsel and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(eunderwriter(s) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such after the Company receives notice in writing: thereof (i) when the registration statement a Prospectus or any other Offering Document Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed with the SEC filed, and, with respect to the Offering Documenta Registration Statement or any post-effective amendment, when the same has become effective; , (ii) of any comment letter or request by the SEC or any other federal or state securities governmental authority for amendments or supplements to the registration statement a Registration Statement or the prospectus related thereto Prospectus or for additional information; , (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation or threatening of any proceedings for that purpose; , (iv) if at any 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 4(l) below cease to be true and correct, (v) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any such Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose; , and (vvi) of the existence happening of any fact event that makes any statement made in such Registration Statement or related Prospectus, Free Writing Prospectus, amendment or supplement thereto, or any document incorporated or deemed to be incorporated therein by reference, as then in effect, untrue in any material respect or that requires the making of which Splitco becomes aware which results any changes in such Registration Statement, Prospectus or documents so that, in the Offering Document or case of the information conveyed to Registration Statement, it will not contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement 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;
(d) 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 (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest practical date;
(e) if requested by the managing underwriter(s) or the Holder, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriter or the Holder, as the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities in accordance with the intended method or methods of distribution of such securities set forth in the Registration Statement 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 have any obligation to modify any information if the Company reasonably believes in good faith that so doing would cause (i) 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 or (ii) the Prospectus to contain an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(f) deliver to the Holder, its counsel, and the underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto (including any Free Writing Prospectus) as such Persons may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities in accordance with the intended method or methods of disposition thereof; and (vi) if at any time the representations and warranties contemplated by any underwriting agreementCompany, securities sale agreement, or other similar agreement, relating subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holder and the underwriters in connection with the offering shall cease and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the Holder, the underwriters, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the Holder or underwriter reasonably requests in writing and to use reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be true kept effective and correct to take any other action that may be necessary or advisable to enable the Holder to consummate the disposition of such Registrable Securities in all material respectssuch jurisdiction in accordance with the intended method or methods of disposition thereof; andprovided, if however, that the notification relates Company will not be required to an event described (i) qualify generally to do business in clause (vany jurisdiction where it would not otherwise be required to qualify but for this Section 4(g), unless Splitco has declared (ii) subject itself to taxation in any jurisdiction wherein it is not so subject or (iii) take any action that a Postponement Period exists, Splitco shall promptly prepare would subject it to general service of process in any such jurisdiction 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);
(h) cooperate with the selling members of the Holder Affiliated Group and furnish the managing underwriter(s) to each facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and enable such seller Registrable Securities to be in such denominations and each underwriterregistered in such names as the managing underwriter(s), if any, or the selling members of the Holder Affiliated Group may request;
(i) subject to Section 3(f) above and upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ij) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than from and after the effective date of such registration statement; (ii) instruct Registration Statement. In connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent (A) which authorize and direct the transfer agent to release, on issue such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership any legend upon sale by a member of the shares being sold, in such denominations requested by Holder Affiliated Group or the sellers of underwriter or managing underwriter under the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable SecuritiesRegistration Statement;
(ik) use reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, prior to the effectiveness of such Registration Statement;
(l) enter into such customary agreements (including, if applicable, including an underwriting agreementagreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other customary actions as reasonably requested by the Participating Holders or Holder (including those reasonably requested by the underwriters shall reasonably request in order managing underwriter(s)) 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 Securities, and mayin connection therewith, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) make such representations and warranties to obtain an opinion from Splitco’s counsel the selling holders of such Registrable Securities and a “cold comfort” letter the underwriters with respect to the business of the Company and updates thereof from its Subsidiaries, and the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily made to underwriters in Underwritten Offerings, and, if true, confirm the same if and when reasonably requested, (ii) use reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of outside counsel (and/or internal counsel if acceptable to the managing underwriter(s)) to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holder), addressed to the Holder and 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 opinions counsel and underwriters, (iii) use reasonable best efforts to obtain “cold comfort” letters and updates thereof from an independent registered public accounting firm with respect to the Company (includingand, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the case of Registration Statement) who have certified the financial statements included in such “cold comfort” letterRegistration Statement, events subsequent addressed to the date of Holder (unless such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates accounting profession) and each of the underwriters, such opinions letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with Underwritten Offerings, (iv) enter into an underwriting agreement which contains indemnification provisions and procedures that are customarily dated customary for underwriting agreements in connection with Underwritten Offerings; and otherwise (v) deliver such documents and certificates as may be reasonably satisfactory requested by the Holder or its counsel, as the case may be, or the managing underwriters to evidence the underwriterscontinued validity of the representations and warranties made pursuant to Section 4(l)(i) 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, if any, or as and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterextent required thereunder;
(km) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestreasonable notice, make reasonably available for inspection by counsel for each Participating a representative of the Holder, by counsel for any underwriter the underwriters participating in any such disposition to be effected pursuant to such registration statement of Registrable Securities, and by any attorney, accountant attorneys or other agent accountants retained by any Participating the Holder or any such underwriter, underwriter (collectively, the “Inspectors”)) at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco the Company and its Subsidiaries (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided, however, that any information and Records that are not generally publicly available at the time of delivery of such information shall be kept confidential by the Inspectors unless (li) use its reasonable best efforts to prevent the issuance disclosure of such information or obtain the withdrawal Records is required by court or administrative order, (ii) disclosure of any order suspending the effectiveness of the registration statement, such information or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdictionRecords, in each casethe opinion of counsel to such Inspector, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 required by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 2 contracts
Sources: Registration Rights Agreement (Rollins Gary W), Registration Rights Agreement (Rollins Gary W)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Corporation may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(vi) above, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement (taking or, if such Registration is an initial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten (10) business days following the effectiveness of such Registration Statement);
(o) enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the requirements same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of the marketing process) in the marketing of such Registrable Securities in any underwritten offering;
(o) promptly prior opinions of counsel to the filing of any document Corporation and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiaryother independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, andor are required to be, included in each case, any successor thereto, reasonably available for discussion of such document and make such changes the Registration Statement) who have certified the financial statements included in such document concerning Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the Participating Holders prior accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the filing thereof effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel for such Participating Holders or underwriters may reasonably request (providedand the managing underwriters, thatif any, notwithstanding to evidence the foregoing, in no event shall Splitco be required continued validity of the representations and warranties made pursuant to file Section 6(o)(i) above and to evidence compliance with any document with the SEC which customary conditions contained in the view of Splitco underwriting agreement or its counsel contains an untrue statement of a material fact other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or omits similar agreement, or as and to state a material fact the extent required to be stated therein or necessary to make any statement therein not misleading)thereunder;
(p) furnish to counsel make available for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy inspection by a representative of the registration statement selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any post-effective amendments attorneys or supplements thereto, including financial statements and schedules, all documents incorporated therein accountants retained by reference, the prospectus contained in such regselling
Appears in 2 contracts
Sources: Registration Rights Agreement (PRA Health Sciences, Inc.), Registration Rights Agreement (PRA Health Sciences, Inc.)
Registration Procedures. If and whenever Splitco is required by Subject to the provisions of this Agreement to effect or cause Section 2.1 and 2.2, in connection with the registration of any the sale of Registrable Securities under in an underwritten offering pursuant to this Agreement, the Securities Act Partnership will as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, promptly as expeditiously as possiblereasonably practicable:
(a) prepare furnish to each Participating Unitholder participating in an underwritten offering without charge, prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and file thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto, including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement and such other documents in such quantities as such Participating Unitholder may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities, and give each Participating Unitholder and its Representatives a registration statement reasonable opportunity to review and comment on an appropriate registration form the same prior to filing any such documents;
(i) cause the Partnership’s Representatives to supply all information reasonably requested by a Participating Unitholder, any Underwriter, or its Representatives in connection with the Registration Statement and (ii) provide each Participating Unitholder, any Underwriter and its Representatives with the opportunity to participate in the preparation of such Registration Statement and the SEC for related Prospectus;
(c) if applicable, use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as a Participating Unitholder reasonably requests and do any and all other acts and things as may be reasonably necessary or advisable to enable a Participating Unitholder to consummate the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (jurisdictions; provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco Partnership shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file (i) qualify generally to do business in any document with the SEC which jurisdiction where it is not then so qualified, (ii) subject itself to taxation in the view any jurisdiction where it is not otherwise then so subject, (iii) take any action that would subject it to service of Splitco or its counsel does not comply with the requirements process in suits other than those arising out of the Securities Act or offer and sale of the rules securities covered by the Registration Statement or (iv) consent to general service of regulations thereunder process in any jurisdiction where it is not then so subject;
(d) notify each Participating Unitholder at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make any statement therein the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) , and the Partnership will promptly prepare and file with the SEC a supplement or amendment to such amendmentsprospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, post-effective amendments 430A and supplements (including430B under the Securities Act in a timely manner) so that, without limitationas thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any reports material fact required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be stated therein or necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with make the provisions statements therein, in the light of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedcircumstances under which they were made, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionnot misleading;
(e) promptly notify advise any Underwriter(s) and each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) Unitholder promptly of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement Registration Statement under the Securities Act or the initiation of any proceedings for that purpose; (iv) of the receipt suspension by Splitco of any notification with respect to the suspension state securities commission of the qualification of any the Registrable Securities for offering or sale under the securities or state “blue sky” laws of in any jurisdiction jurisdiction, or the initiation of any proceeding for such purpose; (v) any of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if preceding purposes. If at any time the representations and warranties contemplated by SEC shall issue any underwriting agreement, securities sale agreementstop order suspending the effectiveness of the Registration Statement, or any state securities commission or other similar agreementregulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or “blue sky” laws, relating the Partnership shall use its reasonable best efforts to obtain the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented withdrawal or amended so that, as thereafter delivered to the purchasers lifting 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 misleadingorder as promptly as practicable;
(f) use its reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Partnership to enable each Participating Unitholder to consummate the disposition of such Registrable Securities; provided, however, that the Partnership shall in no event be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, (iii) 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 (iv) consent to general service of process in any jurisdiction where it is not then so subject;
(g) enter into customary agreements and use reasonable best efforts to take such other actions as are reasonably requested by each Participating Unitholder and are consistent with the other obligations of the Partnership hereunder in order to expedite or facilitate any underwritten offering;
(h) if requested by a Participating Unitholder, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, and subject to the provisions of this Agreement, such information as such Participating Unitholder may reasonably request to have included therein, including any terms of the underwritten offering, and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Partnership is notified of the matters to be included in such prospectus supplement or post-effective amendment;
(i) otherwise use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after within the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)required time period, an earnings statement (which need not be audited) covering the a period of at least twelve (12) consecutive months 12 months, beginning with the first day of Splitco’s first calendar fiscal quarter after the effective date of the registration statementRegistration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderthereunder or any successor provisions thereto;
(gj) (i) cause all such Registrable Securities covered by such registration statement use reasonable best efforts to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 Registration Statement not later than the effective date of such registration statement; Registration Statement;
(iik) instruct such transfer agent (A) cooperate with any Participating Unitholder and any Underwriter to release, on such effective date, 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 Company not bearing any restrictive legends and not subject to any stop transfer order with respect to the certificates with respect to the any transfer agent, and cause such Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, be issued in such denominations requested by and registered in such names as the sellers of lead Unitholder may request in writing in connection with the Registrable Securities or any managing underwriter; and (iii) in the case closing of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the sale of Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jl) use its reasonable best efforts to cause such Registrable Securities to be listed or quoted on the Agreed Securities Exchange or, if Common Units are not then listed on the Agreed Securities Exchange, then on such other securities exchange or national quotation system on which the Common Units are then listed or quoted; and
(m) the Partnership will cooperate with each Participating Unitholder and each Underwriter in effecting any underwritten offering as promptly as reasonably practicable following receipt of an Underwritten Offering Request. In connection with any underwritten offering (i) under Section 2.1(b), the Devon Parties shall be entitled to select the managing Underwriter or Underwriters and (ii) under Section 2.2, the Partnership shall be entitled to select the managing Underwriter or Underwriters. The Partnership shall reasonably assist such managing Underwriter or Underwriters in their efforts to sell Registrable Securities pursuant to such underwritten offering and shall make senior executives with appropriate seniority and expertise reasonably available for customary “road show” or other presentations during the marketing period for such Registrable Securities. In furtherance of the foregoing, the Partnership will use its reasonable best efforts to obtain an opinion from Splitco’s counsel and deliver to each Underwriter and Participating Unitholder a “cold comfort” comfort letter and updates thereof from the independent registered public accountants who have certified Splitco’s accounting firm for the Partnership (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Partnership whose financial statements (and/or any other financial statements) are included or incorporated by reference in such registration statement, in each case, the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such opinions Underwriter and “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco Unitholder 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) . The Partnership will use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and deliver to each managing underwriter, if any, Underwriter and make Unitholder a 10b-5 statement and legal opinion from the representatives of Splitco, any Subsidiary, and, Partnership’s counsel in each case, any successor thereto, reasonably available for discussion of customary form and covering such document matters as are customarily covered by 10b-5 statements and make legal opinions delivered to Underwriters in underwritten offerings as such changes in such document concerning the Underwriter and/or Participating Holders prior to the filing thereof as counsel for such Participating Holders or underwriters Unitholder may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg.
Appears in 2 contracts
Sources: Unitholder Agreement (EnLink Midstream Partners, LP), Unitholder Agreement (Devon Energy Corp/De)
Registration Procedures. If and whenever Splitco is required by In connection with the provisions of Company’s registration obligations under this Agreement Agreement, with respect to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possibleeach such Registration Statement:
(a) prepare and file with Prior to the SEC a registration statement on an appropriate registration form filing of the SEC for Registration Statement or any related Prospectus or any amendment or supplement thereto, the disposition of such Registrable Securities in accordance with Company shall furnish to the intended method of disposition thereofShareholder (or its Designee, which registration form (i) who shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale an affiliate of the Registrable Securities by Shareholder (the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders“Designee”)) and to one its counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document documents incorporated or deemed incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such Person). The Shareholder (or its Designee) and its counsel and shall not file have the right to provide comments to such Registration Statement to the Company within five (5) business days of the Shareholder’s (or its Designee’s) receipt of such Registration Statement. The Company shall use commercially reasonable efforts to reflect in the Registration Statement or any Offering Document to which the Participating Holders such Prospectus or the underwritersany amendments or supplements thereto, such comments, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco Shareholder (or its Designee) or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;shall reasonably propose.
(ib) Subject to Section 4(i), the Company shall prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Registration Statement (including any Exchange ActAct documents incorporated by reference in such Registration Statement) to such registration statement and the prospectus Prospectus used in connection therewith with such Registration Statement as may be necessary to keep such registration statement continuously the Registration Statement effective for such period as any Participating Holder pursuant to such registration statement shall request required herein and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by the Registration Statement; and use commercially reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Securities or Registrable Warrant Securities, as the case may be, covered by such registration statement the Registration Statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in the Registration Statement as so amended or such registration statement; providedProspectus as so supplemented. Subject to Section 4(i), however, that Splitco may discontinue any registration the Company shall use commercially reasonable efforts to respond to comments of its securities that cease the SEC with respect to be Registrable Securities; and the Registration Statement with seven (ii7) provide notice to such sellers business days of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;receipt thereof.
(c) furnishAs promptly as reasonably practicable, without charge, the Company shall give notice to each Participating Holder Selling Shareholder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingcounsel: (i) when any Prospectus, Prospectus supplement, Registration Statement or amendment to the registration statement or any other Offering Document Registration Statement has been filed with the SEC and, with respect to the Offering DocumentRegistration Statement or any post-effective amendment, when the same has become been declared effective; , (ii) of any comment letter or request written request, following the effectiveness of the Registration Statement under the Securities Act, by the SEC or any other federal or state securities governmental authority for amendments or supplements to the registration statement Registration Statement or the prospectus related thereto 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 the registration statement Registration Statement or the initiation or written threat of any proceedings for that purpose; , (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities or Registrable Warrant Securities, as the case may be, for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or the written threat of any proceeding for such purpose; , (v) of the occurrence of a Material Event (but not the nature of or details concerning such Material Event) and (vi) of the determination by the Company that a post-effective amendment to the Registration Statement or Prospectus supplement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 4(i)), state that it constitutes a Deferral Notice, in which event the provisions of Section 4(i) shall apply.
(d) The Company shall use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities or Registrable Warrant Securities, as the case may be, for sale in any jurisdiction.
(e) The Company shall furnish to each Selling Shareholder, without charge, at least one conformed copy of the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by a Selling Shareholder, and all exhibits to the extent requested by a Selling Shareholder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC.
(f) The Company shall promptly deliver to each Selling Shareholder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Selling Shareholder may reasonably request in connection with resales by such Selling Shareholder of Registrable Securities or Registrable Warrant Securities, as the case may be. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each Selling Shareholder in connection with the offering and sale of the Registrable Securities or Registrable Warrant Securities, as the case may be, covered by such Prospectus and any amendment or supplement thereto.
(g) The Company shall use commercially reasonable efforts to register and qualify the Registrable Securities or Registrable Warrant Securities, as the case may be, held by the Selling Shareholders covered by the Registration Statement under such securities or blue sky laws of such states as may be reasonably necessary or advisable to enable each Selling Shareholder to consummate the disposition of the Registrable Securities or Registrable Warrant Securities, as the case may be, held by such Selling Shareholder in such states; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(h) If requested by a Selling Shareholder, the Company shall cooperate with such Selling Shareholder to facilitate the timely preparation and delivery of certificates representing Registrable Securities or Registrable Warrant Securities, as the case may be, to be delivered to a transferee pursuant to the Registration Statement and to enable such Registrable Securities or Registrable Warrant Securities, as the case may be, to be in such denominations and registered in such names as any such Selling Shareholder may request.
(i) Upon (i) the issuance by the SEC of a stop order suspending the effectiveness of the Registration Statement or the initiation of proceedings with respect to the Registration Statement under Section 8(d) or 8(e) of the Securities Act; (ii) such time as the Registration Statement or related Prospectus omits information required to be contained therein; (iii) the occurrence of any event or the existence of any fact or circumstance or the passage of time as a result of which Splitco becomes aware which results in the Offering Document or the information conveyed to Registration Statement shall contain any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement any Prospectus shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of contain any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (a “Material Event”); or (iv) the occurrence, existence or pendency of any corporate development that, in the reasonable discretion of the board of directors of the Company, makes it detrimental to the Company for the Registration Statement and the related Prospectus to be available, (A) in the case of clauses (ii) and (iii) above, subject to the next sentence, the Company shall as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into the Registration Statement and Prospectus so that (x) all information required to be contained in the Registration Statement or related Prospectus is contained or incorporated reference therein, or (y) the Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading);
(p) furnish , and such Prospectus does not contain any untrue statement of a material fact or omit to counsel for each Participating Holder upon its request and state any material fact required to each managing underwriterbe stated therein or necessary to make the statements therein, without charge, upon request, at least one conformed copy in the light of the registration statement and any circumstances under which they were made, not misleading, in each case, as thereafter delivered to the purchasers of the Registrable Securities or Registrable Warrant Securities, as the case may be, being sold thereunder, and, in the case of a post-effective amendments amendment to a Registration Statement, subject to the next sentence, use commercially reasonable efforts to cause it to be declared effective as promptly as is reasonably practicable, and (B) the Company shall give notice to each Selling Shareholder, counsel for such Selling Shareholder and underwriter, if any, that the availability of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Selling Shareholder agrees not to sell any Registrable Securities or supplements theretoRegistrable Warrant Securities, including financial statements as the case may be, pursuant to the Registration Statement until such Selling Shareholder’s receipt of copies of the supplemented or amended Prospectus or amended Registration Statement, or until it is advised in writing by the Company that the Prospectus may be used, and scheduleshas received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clauses (i)-(iii) above, all documents incorporated therein by referenceas promptly as is reasonably practicable, and (y) in the case of clause (iv) above, as soon as in the reasonable discretion of the board of directors of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 4(i) with respect to clauses (ii), (iii) and (iv) above, to suspend the availability of the Registration Statement or any Prospectus, for no more than 45 days in any single period (or 60 days in the event of a Material Event pursuant to which the Company has delivered a second notice as specified below) and no more than 90 days during any 12-month period (each a “Deferral Period”). Notwithstanding the foregoing, in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the prospectus contained Company may deliver to the Selling Shareholders a second notice, which shall have the effect of extending the Deferral Period by up to an additional 15 days, or such shorter period of time as is specified in such regsecond notice.
(j) The Company may require each Selling Shareholder to furnish to the Company a certified statement as to the number of securities of the Company beneficially owned by such Selling Shareholder and, if required by the SEC, the person thereof that has voting and dispositive control over the securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Delta Products CORP), Registration Rights Agreement (Delta International Holding Ltd.)
Registration Procedures. If and whenever Splitco Whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco shall, Company as expeditiously as possible:
(a) shall prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofrequisite Registration Statement, which registration form (i) shall be selected by Splitco 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 shall include all financial statements required by the SEC to be filed therewith, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or blue sky laws of any such filingjurisdiction, Splitco or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating HoldersDesignated Holder and reasonably satisfactory to the Company, in the case of a registration pursuant to Section 2.1, and selected by the lead managing underwriter, if any, and reasonably satisfactory to the Designated Holder, in the case of a registration pursuant to Section 2.2) and to one counsel for the Managerlead managing underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document Registration Statement or amendment thereto, any Prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Participating Holders Designated Holder covered by such Registration Statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(ib) shall prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder seller of Registrable Securities pursuant to such registration statement Registration Statement shall request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement Registration Statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateRegistration Statement;
(c) shall furnish, without charge, to each Participating Holder seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement Registration Statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus Prospectus included in such registration statement (including Registration Statement, each preliminary prospectus Prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus Issuer Free Writing Prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting seller, and shall consent to the use in accordance with all applicable laws law of each such Offering Document Registration Statement, each amendment thereto, each such Prospectus, preliminary Prospectus or Issuer Free Writing Prospectus by each such Participating Holder 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 Registration Statement or prospectus)Prospectus;
(d) shall use its commercially reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement Registration Statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall reasonably request in writingrequest, and do any and all other acts and things which that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions, except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would notwhere, but for the requirements of this paragraph (dSection 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) shall promptly notify each Participating Holder selling Registrable Securities covered by such Registration Statement and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: any:
(i) when the registration statement Registration Statement, any pre-effective amendment, the Prospectus or any other Offering Document Prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Issuer Free Writing Prospectus has been filed with the SEC and, with respect to the Offering DocumentRegistration Statement or any post-effective amendment, when the same has become effective; ;
(ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement Registration Statement or the prospectus Prospectus related thereto or for additional information; ;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that purpose; ;
(iv) of the receipt by Splitco 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 of any proceeding for such purpose; ;
(v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document Registration Statement, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and and
(vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, agreement relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period existsthe Company, Splitco subject to the provisions of Section 2.1(c), promptly shall promptly prepare and file with the SEC, and furnish to each such seller and each underwriter, if any, a reasonable number of copies of of, a prospectus Prospectus supplemented or amended 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 in the light of the circumstances under which they were made not misleading;
(f) shall comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement Registration Statement (and in any event within forty-five (45) days, or ninety (90) 90 days if it is a fiscal year, after the end of such twelve 12 month period described hereafter), an earnings statement (statement, which need not be audited) , covering the period of at least twelve (12) 12 consecutive months beginning with the first day of Splitcothe Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) shall cause all such Registrable Securities covered by such registration statement Registration Statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities authorized to be listed on a national securities exchange or to secure designation if shares of all such the particular class of Registrable Securities as a Nasdaq National Market “national market system security” within are at that time, or will be immediately following the meaning of Rule 11Aa2-1 of the Exchange Act oroffering, failing that, secure Nasdaq National Market authorization for listed on such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsexchange;
(ih) shall provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable SecuritiesRegistration Statement;
(i) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters Designated Holder 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 that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to in connection with an underwritten offering, shall obtain an opinion from Splitcothe Company’s counsel and a “cold comfort” letter and updates thereof from the Company’s independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use commercially reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicableRegistration Statement;
(ml) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementRegistration Statement;
(nm) use its reasonable best efforts to 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 (underwriters, taking into account the needs of the Company’s businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) , in the marketing of Registrable Securities in any underwritten offering;
(on) shall promptly prior to the filing of any document which that is to be incorporated by reference into the registration statement Registration Statement or the prospectus (after the initial filing of such registration statement)Prospectus, and prior to the filing or use of any free writing prospectusIssuer Free Writing Prospectus, provide copies of such document to counsel for each Participating Holder the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company’s representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders selling holders prior to the filing thereof as counsel for such Participating Holders selling holders or underwriters may reasonably request request;
(o) shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such 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 disposition of such Registrable Securities;
(q) shall not take any direct or indirect action prohibited by Regulation M under the Exchange Act; provided, thathowever, notwithstanding that to the foregoingextent that any prohibition is applicable to the Company, 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 participating in no event shall Splitco be the disposition of such Registrable Securities and their respective counsel in connection with any filings required to file be made with FINRA; and
(s) shall take all reasonable action to ensure that any document 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 SEC which Securities Act, is filed in accordance with the view of Splitco or its counsel contains an Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make any statement therein the statements therein, in light of the circumstances under which they were made, not misleading);
(p) furnish to counsel . If the Company files any shelf Registration Statement for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy the benefit of the registration statement and holders of any of its securities other than the Holders, the Company shall include in such Registration Statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders, in order to ensure that the Holders may be added to such shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendments amendment. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information in writing regarding such seller and the distribution of such Registrable Securities as the Company from time to time reasonably may request; provided, that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration. Each seller of Registrable Securities agrees that upon receipt of any notice from the Company under Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such seller’s receipt of the copies of the supplemented or supplements thereto, including financial statements and schedules, all documents incorporated therein by referenceamended Prospectus. In the event the Company shall give any such notice, the prospectus contained applicable period set forth in Section 2.4(b) shall be extended by the number of days during such regperiod from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus. If any such Registration Statement or comparable statement under “blue sky” laws refers to any Holder by name or otherwise as the Holder of any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Holder and the Company, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel, required by the Securities Act or any similar federal statute or any state “blue sky” or securities law then in force, the deletion of the reference to such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (CareView Communications Inc), Registration Rights Agreement (CareView Communications Inc)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or use best efforts Section 4, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possiblepossible to the extent applicable:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Company may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions jurisdiction; provided, however, that the Company will not be required to (including keeping such registration or qualification i) qualify generally to do business in effect for so long as such registration statement remains in effect), except that in no event shall Splitco any jurisdiction where would not otherwise be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph Agreement or (d), be required to be so qualified, to ii) take any action that would subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct use its reasonable best efforts to, cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from customary due diligence review, make available for inspection by a representative of the independent public accountants who have certified Splitco’s financial statements (and/or selling holders of Registrable Securities, any other financial statements) included or incorporated by reference underwriter participating in any such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case disposition of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or accountant in connection with such Registration Statement, provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the “Records”reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use or, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be reasonably necessary required to enable them give the Company written notice of the proposed disclosure prior to exercise such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement or Prospectus under this Agreement); and
(p) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their due diligence responsibilityrespective counsel in connection with any filings required to be made with the FINRA, and to including the use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance obtain FINRA’s pre-clearance or obtain the withdrawal of any order suspending the effectiveness pre-approval of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees Registration Statement 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regapplicable Prospectus upon
Appears in 2 contracts
Sources: Registration Rights Agreement (Genesee & Wyoming Inc), Investment Agreement (Genesee & Wyoming Inc)
Registration Procedures. If and whenever Splitco Whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco shall, Company as expeditiously as possible:
(a) shall prepare and file with the SEC a the requisite registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofstatement, which registration form (i) shall be selected by Splitco 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 shall include all financial statements required by the SEC to be filed therewith, and Splitco shall use its commercially reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or blue sky laws of any such filingjurisdiction, Splitco or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders, in the case of a registration pursuant to Section 2.1, and selected by the lead managing underwriter, in the case of a registration pursuant to Section 2.2) and to one counsel for the Managerlead managing underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Participating Holders holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(ib) shall prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) shall furnish, without charge, to each Participating Holder seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus included in such registration statement (including statement, each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus Issuer Free Writing Prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller and underwriter reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting seller, and shall consent to the use in accordance with all applicable laws law of each such Offering Document registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free Writing Prospectus by each such Participating Holder 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);
(d) shall use its commercially reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall reasonably request in writingrequest, and do any and all other acts and things which that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions, except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would notwhere, but for the requirements of this paragraph (dSection 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) shall promptly notify each Participating Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any other Offering Document Issuer Free Writing Prospectus has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; ;
(ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; ;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; ;
(iv) of the receipt by Splitco 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 of any proceeding for such purpose; ;
(v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period existsthe Company, Splitco subject to the provisions of Section 2.1(c), promptly shall promptly prepare and file with the SEC, and furnish to each such seller and each underwriter, if any, a reasonable number of copies of of, a prospectus supplemented or 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;
(f) shall comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) 90 days if it is a fiscal year, after the end of such twelve 12 month period described hereafter), an earnings statement (statement, which need not be audited) , covering the period of at least twelve (12) 12 consecutive months beginning with the first day of Splitcothe Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) shall use commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities authorized to be listed on a national securities exchange or to secure designation if shares of all such the particular class of Registrable Securities as a Nasdaq National Market “national market system security” within are at that time, or will be immediately following the meaning of Rule 11Aa2-1 of the Exchange Act oroffering, failing that, secure Nasdaq National Market authorization for listed on such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsexchange;
(ih) 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) shall 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 that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco the Company make to and for the benefit of such Holders the representations, warranties and covenants of Splitco the Company which are being made to and for the benefit of such underwriters);
(j) shall use its commercially reasonable best efforts (i) to obtain an opinion from Splitcothe Company’s counsel and a “cold comfort” letter and updates thereof from the Company’s independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use commercially reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(ml) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(nm) use its reasonable best efforts to 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 (underwriters, taking into account the needs of the Company’s businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) , in the marketing of Registrable Securities in any underwritten offering;
(on) shall promptly prior to the filing of any document which that is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement)prospectus, and prior to the filing or use of any free writing prospectusIssuer Free Writing Prospectus, provide copies of such document to counsel for each Participating Holder the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company’s representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders selling holders prior to the filing thereof as counsel for such Participating Holders selling holders or underwriters may reasonably request request;
(o) shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such 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 disposition of such Registrable Securities;
(q) shall not take any direct or indirect action prohibited by Regulation M under the Exchange Act; provided, thathowever, notwithstanding that to the foregoingextent that any prohibition is applicable to the Company, 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 participating in no event shall Splitco be the disposition of such Registrable Securities and their respective counsel in connection with any filings required to file be made with FINRA; and
(s) shall take all reasonable action to ensure that any document 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 SEC which Securities Act, is filed in accordance with the view of Splitco or its counsel contains an Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omits omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. To the extent the Company is a well-known seasoned issuer as defined in Rule 405 under the Securities Act (a “WKSI”) at the time any Demand Registration Request is submitted to the Company, and such Demand Registration Request requests that the Company file an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) on Form F‑3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. The Company shall use commercially reasonable 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. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company shall pay such fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the shelf registration statement on Form F‑3 and, if such form is not available, Form F‑1 and keep such registration statement effective during the period during which such registration statement is required to be stated therein or kept effective. Notwithstanding anything contained herein to the contrary, the Company shall be entitled to exclude from the shelf registration statement such Registrable Securities as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel) is reasonably necessary for the offering to make any statement therein not misleading);
qualify as a secondary (prather than a primary) furnish offering pursuant to counsel for each Participating Holder upon its request and Rule 415 under the Securities Act in response to each managing underwriter, without charge, upon request, at least one conformed copy comments from the staff of the SEC. To the extent any Registrable Securities are so excluded, the Company agrees to register such excluded shares in accordance with Section 2.1 promptly when eligible to do so under applicable federal securities laws, rules, regulations and policies, as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel). If the Company files any shelf registration statement and for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders, in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendments or supplements theretoamendment. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information in writing regarding such seller and the distribution of such Registrable Securities as the Company from time to time reasonably may request; provided, including financial statements that such information is necessary for the Company to consummate such registration and schedulesshall be used only in connection with such registration. Each seller of Registrable Securities agrees that upon receipt of any notice from the Company under Section 2.4(e)(v), all documents incorporated therein by reference, the prospectus contained in such regseller will discontinue such s
Appears in 2 contracts
Sources: Registration Rights Agreement (Verdant Earth Technologies LTD), Registration Rights Agreement (Verdant Earth Technologies LTD)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof (including, without limitation, a Partner Distribution), and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and filed. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its 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.
(e) If requested by the managing underwriters, if any, or the holders of a majority of Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, at least one (1) copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdiction; provided, except however, that in no event shall Splitco the Company will not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it is not then so qualified or (ii) take any action that would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdiction;jurisdiction where it is not then so subject.
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed Cooperate with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) selling holders of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under and the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwritermanaging underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a reasonable number firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Upon the occurrence of copies of any event contemplated by Section 6(c)(v) above, prepare a prospectus supplemented supplement or amended post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fk) comply Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(l) Provide and continue cause to complybe 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.
(m) Use its reasonable best efforts to cause all Registrable Securities covered by such Registration Statement to be authorized to be quoted on the Nasdaq Stock Market or listed on a national securities exchange if securities of the particular class of Registrable Securities are at that time quoted on the Nasdaq Stock Market or listed on such exchange, as the case may be.
(n) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) use its reasonable best efforts to obtain a report of the independent petroleum engineers of the Company relating to the oil and gas reserves of the Company included in such Registration Statement if the Company has had its reserves prepared, audited or reviewed by an independent petroleum engineer, such report to be in customary form and covering matters of the type customarily covered in such reports, (v)if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (vi) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 6(n)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(o) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law, or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Company or its subsidiaries in violation of law.
(p) Comply with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
, or any similar rule promulgated under the Securities Act, no later than ninety (g90) days after the end of any twelve (12) month period (or such shorter period of time as may be required under the Securities Act) (i) cause all such commencing at the end of any fiscal quarter in which Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 2 contracts
Sources: Registration Rights Agreement (ANTERO RESOURCES Corp), Registration Rights Agreement (ANTERO RESOURCES Corp)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Agreement (or including any sale referred to in any Take-Down Notice), the Company shall as promptly as reasonably practicable, subject to the other provisions of this Agreement:
(i) use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Section 5.03; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch Registration Statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice, Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereofsuch underwriter(s), and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letter from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the underwriterslead managing underwriter(s), if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required reasonable opportunity to file any document with the SEC which participate in the view preparation of Splitco such Registration Statement and each prospectus (including any prospectus supplement) included or its counsel does not comply with deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the requirements context of a registered Underwritten Offering) of the Securities Act or of Company, including reasonable access to (including responses to any reasonable inquiries by the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadinglead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors;
(iii) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Section 5.03;
(iii) if requested by the lead managing underwriter(s), promptly include in a prospectus supplement or post-effective amendment such registration statement shall information as the lead managing underwriter(s), if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5.03(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus supplement) and any summary prospectuseach 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting 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;
(vi) 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;
(vii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement or any Free Writing Prospectus utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jviii) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) 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, in each case, as promptly as reasonably practicable;
(mix) provide a CUSIP number for all cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(x) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the 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;
(nxi) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Note and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legend upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offering;under the Registration Statement; and
(oxii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the filing Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters.
(b) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees that upon receipt of any document which notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 5.03(a)(vii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 2 contracts
Sources: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)
Registration Procedures. If (a) In connection with the Company's Registration obligations under Sections 2.01 and whenever Splitco is required by 2.02 and subject to the provisions of this Agreement to effect or cause applicable terms and conditions set forth therein, the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect such Registration to permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method plan of disposition thereofdistribution requested by the Participating Investors and set forth in the applicable Registration Statement as expeditiously as reasonably practicable, which registration form and in connection therewith the Company shall:
(i) shall be selected by Splitco prepare the required Registration Statement including all exhibits and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by under the SEC Securities Act to be filed therewith, and Splitco shall use its reasonable best efforts before filing a Registration Statement, Prospectus or any Issuer Free Writing Prospectus, or any amendments or supplements thereto, (x) furnish to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall requestthe underwriters, if any, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the ManagerInvestors, if any, copies of reasonably complete drafts of all such documents proposed prepared to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any underwriters and the Participating Holder Investors and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such their respective counsel and shall (y) except in the case of a Registration under Section 2.02, not file any Offering Document Registration Statement or Prospectus or amendments or supplements thereto to which the any Participating Holders Investor or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to ;
(ii) prepare and file any document with the SEC which in Commission such pre- and post-effective amendments to such Registration Statement, supplements to the view Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by any Participating Investor, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Holder), or (z) necessary to keep such Registration effective for the period of Splitco or its counsel does not time required by this Agreement, and comply with the requirements provisions of the Securities Act applicable securities laws with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;
(iii) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the rules relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed, (B) of regulations thereunder any written comments by the Commission or any request by the Commission or any other federal or state governmental authority for amendments or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or any order by the Commission or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus or the initiation or threatening of any proceedings for such purposes, (D) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction;
(iv) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement, the Prospectus included in such Registration Statement (as then in effect) or any Issuer Free Writing Prospectus contains an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus, any statement therein preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading;
(i) , when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement, Prospectus or Issuer Free Writing Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC such amendmentsCommission, post-effective amendments and supplements (including, furnish without limitation, any reports required to be filed pursuant charge to the Exchange Act) to such registration statement Participating Holders and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect to the sale managing underwriter or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Managerunderwriters, if any, an amendment or supplement to such Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(v) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of Splitco’s reasonable determination that any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vi) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to a registration statement would the applicable Registration Statement such information as the managing underwriter or underwriters and the Participating Investor(s) agree should be appropriateincluded therein relating to the plan of distribution with respect to such Registrable Securities, and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(cvii) furnish, without charge, furnish to each Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the securities covered applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by such registration statement such number of reference and all exhibits (including those incorporated by reference);
(viii) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectus Prospectus), any Issuer Free Writing Prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and Holder or underwriter may reasonably request in order to facilitate (it being understood that the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting Company consents to the use in accordance with all applicable laws of each such Offering Document Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered thereby) and such other documents as such Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such registration statement Holder or prospectus)underwriter;
(dix) on or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify qualify, and cooperate with the Registrable Securities covered by such registration statement under such other securities Participating Holders, the managing underwriter or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriterunderwriters, if any, shall 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 Participating Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing, writing and do any and all other acts and or things which may be reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 2.01(b), whichever is applicable, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(x) cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(xi) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or underwriterthe underwriter or underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(exii) promptly notify make such representations and warranties to the Participating Holders and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;
(xiii) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as any Participating Investor or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;
(xiv) obtain for delivery to the Participating Holders and to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Holders or underwriters, as the case may be, and their respective counsel;
(xv) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Participating Holders, a cold comfort letter from the Company's independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xvi) cooperate with each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to participating in the purchasers disposition of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact Securities and their respective counsel in connection with any filings required to be stated therein or necessary to make made with the statements therein in the light of the circumstances under which they were made not misleadingFINRA;
(fxvii) use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), securities laws and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ixviii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement the applicable Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable SecuritiesRegistration Statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jxix) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily cause all Registrable Securities covered by such opinions the applicable Registration Statement to be listed on each securities exchange on which any of the Company Shares are then listed or quoted and “cold comfort” letters (including, in on each inter-dealer quotation system on which any of the case of such “cold 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 “cold comfort” letters Company Shares are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterthen quoted;
(kxx) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating to discussions in connection with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as Splitco may reasonably requestan Underwritten Offering, make reasonably available upon reasonable notice at reasonable times and for reasonable periods for inspection by counsel for each any Participating HolderInvestor, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement Registration Statement and by any attorney, accountant or other agent retained by any such Participating Holder Investor(s) or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility; provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.04(a)(xx) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (w) the release of such information is requested or required by law or by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (x) such information is or becomes publicly known other than through a breach of this or any other agreement of which such Person has actual knowledge, (y) such information is or becomes available to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with such Person on a non-confidential basis from a source other than the Inspectors Company or (if so requestedz) and to supply the such information reasonably requested is independently developed by any such Inspector in connection with such registration statement;Person; and
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing processxxi) in the marketing case of an Underwritten Offering of Registrable Securities in an amount of at least one percent (1%) of the then-outstanding Company Shares, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the managing underwriter or underwriters in any underwritten offering;such Underwritten Offering no more than once per calendar quarter and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.
(ob) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for The Company may require each Participating Holder to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing. Each Participating Holder agrees to furnish such information to the Company and to each managing underwritercooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, if anyupon delivery of any notice by the Company of the happening of any event of the kind described in Section 2.04(a)(iii)(C), and make (D), or (E) or Section 2.04(a)(iv), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until (i) such Holder's receipt of the representatives copies of Splitcothe supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.04(a)(iv), any Subsidiary(ii) such Holder is advised in writing by the Company that the use of the Prospectus or Issuer Free Writing Prospectus, andas the case may be, may be resumed, (iii) such Holder is advised in each casewriting by the Company of the termination, any successor thereto, reasonably available for discussion expiration or cessation of such document order or suspension referenced in Section 2.04(a)(iii)(C) or (E) or (iv) such Holder is advised in writing by the Company that the representations and make such changes warranties of the Company in such document concerning applicable underwriting agreement are true and correct in all material respects. If so directed by the Participating Holders prior Company, such Holder shall deliver to the filing thereof as counsel for Company (at the Company's expense) all copies, other than permanent file copies then in such Participating Holders Holder's possession, of the Prospectus or underwriters may reasonably request (providedany Issuer Free Writing Prospectus covering such Registrable Securities current at the time of delivery of such notice. In the event the Company shall give any such notice, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with period during which the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact applicable Registration Statement is required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy maintained effective shall be extended by the number of days during 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 regperio
Appears in 2 contracts
Sources: Registration Rights Agreement (Star Bulk Carriers Corp.), Registration Rights Agreement (Star Bulk Carriers Corp.)
Registration Procedures. If and whenever Splitco the Corporation is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) use its 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 date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Corporation has received such registration statementrequest; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Corporation may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Corporation may furnish or make available any such seller (Splitco documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder upon the occurrence of, and each managing underwriterits knowledge of, if any andevent contemplated by Section 6(c)(vi) above, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or a supplement to the related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter document incorporated or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct Registration Statement and, if required by the Corporation’s transfer agent, cause an opinion of counsel to be delivered to such transfer agent (A) to releaseagent, on such effective datetogether with any other authorizations, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested directions required by the sellers of transfer agent which authorize and direct the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order transfer agent to expedite or facilitate the disposition of issue 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 without any such underwriting agreement and may, at their option, require that Splitco make to and for legend upon sale by the benefit of such Holders holder or the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included underwriter 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than under the effective date of the registration statementRegistration Statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the underwriters effectiveness of such Registration Statement;
(taking o) enter into account such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the needs holders of a majority of the businesses Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of Splitcosuch Registrable Securities, any Subsidiaryand in such connection, andwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, any successor theretoin form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities and the requirements underwriters opinions of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior counsel to the filing of any document Corporation and updates thereof (which is to counsel and opinions (in form, scope and substance) shall be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior reasonably satisfactory to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make counsels to the representatives selling holders of Splitcothe Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any Subsidiaryother independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, andor are required to be, included in each case, any successor thereto, reasonably available for discussion of such document and make such changes the Registration Statement) who have certified the financial statements included in such document concerning Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the Participating Holders prior accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the filing thereof effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel for such Participating Holders or underwriters may reasonably request (providedand the managing underwriters, thatif any, notwithstanding to evidence the foregoing, in no event shall Splitco be required continued validity of the representations and warranties made pursuant to file Section 6(o)(i) above and to evidence compliance with any document with the SEC which customary conditions contained in the view of Splitco underwriting agreement or its counsel contains an untrue statement of a material fact other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or omits similar agreement, or as and to state a material fact the extent required to be stated therein or necessary to make any statement therein not misleading)thereunder;
(p) furnish to counsel make available for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy inspection by a representative of the registration statement and selling holders of Registrable Securities, any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such regunderwriter participa
Appears in 2 contracts
Sources: Registration Rights Agreement (Advanced Disposal Services, Inc.), Registration Rights Agreement (Advanced Disposal Services, Inc.)
Registration Procedures. If and whenever Splitco the Corporation 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 this Agreement (Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Corporation shall reasonably cooperate in good faith in the sale of the securities and shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC and FINRA all required filings, including a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form or by the Corporation in all material respects accordance with the requirements intended method or methods of distribution thereof (including, without limitation, a distribution to, and, to the applicable registration form and include all financial statements required by extent applicable, resale by, the SEC to be filed therewithmembers or partners of a holder of Registrable Securities, a “Partner Distribution”), and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), or before sending a response comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Corporation shall furnish or otherwise make available to an SEC comment letter prior to any each holder of Registrable Securities whose Registrable Securities are included in such filingRegistration Statement or Prospectus, Splitco will furnish to one counsel for the Holders participating in the planned offering holders of Registrable Securities covered by such Registration Statement or Prospectus (selected by the Participating Holdersholders of a majority of such Registrable Securities or, in any Underwritten Block Trade or Underwritten Shelf Takedown, the initiating Major Shareholder) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such holders and counsel (including any objections to any information pertaining to any Participating Holder such holders and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes such other documents reasonably requested by such holders or counsel, including any correspondence between the SEC and the Corporation, its counsel or auditors and all memoranda relating to discussions with the SEC with respect to such Registration Statement (including documents that would be incorporated or deemed to be incorporated therein by reference), and, if requested by such holders or counsel, provide such holders and/or counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein), or any such comparable statements under securities or state “blue sky” laws of any jurisdiction, or any such free writing prospectus related thereto, with respect to a Demand Registration, to which such holders or counsel, on behalf of such holders of a majority of the Participating Holders Registrable Securities covered by such Registration Statement or the Prospectus or such managing underwriters, if anyas the case may be, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Corporation, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in accordance force) under the Securities Act;
(c) notwithstanding anything contained herein to the contrary, at the request of any holder of Registrable Securities seeking to effect or considering a Partner Distribution, file any Prospectus supplement or post-effective amendments, or include in the initial Registration Statement any disclosure or language, or include in any Prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, deemed necessary or advisable by such holder to effect such Partner Distribution;
(d) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly and in writing, (i) when a Registration Statement, any pre-effective amendment thereto, a Prospectus, any Prospectus supplement, any post-effective amendment to a Registration Statement or any free writing prospectus has been filed with the intended methods SEC and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of disposition any request by the seller SEC or sellers thereof set forth 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 Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true, complete and correct, or could reasonably be expected with the passage of time to cease to be true, complete and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation becomes aware of the existence of any fact or the occurrence of any event that makes any statement made in such registration statementRegistration Statement, related Prospectus, any document incorporated or deemed to be incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents, free writing prospectus or information 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, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser, 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 (which notice shall notify the selling holders only of the existence of such a fact or occurrence of such an event and shall provide no additional information regarding such fact or event to the extent such information would constitute material non-public information);
(e) use its 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 date reasonably practicable;
(f) if requested by the managing underwriters, 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 managing underwriters, if any, or such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that Splitco may discontinue the Corporation shall not be required to take any registration actions under this Section 6(f) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCorporation, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cg) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, as many conformed copies of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter), and any free writing prospectus utilized in connection therewith, as such number Persons may reasonably request;
(h) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus (including each form of or preliminary prospectus and any summary prospectusProspectus) and any other prospectus filed under Rule 424 under the Securities Acteach amendment or supplement thereto, and each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Corporation, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto, and each such free writing prospectus, by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(di) prior to any Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation 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 any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment underwritten offering, but in any other such sale, within five (5) business days prior to having to issue the securities, and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof (and, in the case of Registrable Securities registered on a shelf registration statement, at the request of any holder, prepare and deliver certificates representing such Registrable Securities not bearing any restrictive legends and deliver or cause to be delivered an opinion or instructions to the transfer agent in order to allow such Registrable Securities to be sold from time to time);
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(el) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when upon the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) Corporation becoming aware of the existence of any fact or occurrence of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties event contemplated by any underwriting agreementSection 6(d)(vi) above, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish file with the SEC a supplement or post-effective amendment to each such seller and each underwriterthe Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, if any, a reasonable number of copies of a prospectus supplemented or amended file any other required document so that, as thereafter promptly delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;
(fm) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(in) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to releaseRegistration Statement and, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(o) (i) use its reasonable best efforts to cause all Registrable Securities covered by such Registration Statement to be listed on the principal national securities exchange on which similar securities of the Corporation are then listed prior to the effectiveness of such Registration Statement and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Corporation, including, without limitation, all corporate governance requirements;
(p) enter into such customary agreements (including, if applicable, including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions as reasonably requested by the Participating Holders or holders of a majority of the underwriters shall Registrable Securities being sold in connection therewith (including those reasonably request in order requested by the managing underwriters, if any) 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 Securities, and in such connection, whether or not an underwriting agreement is entered into and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included whether 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to not the registration statement, and, upon receipt of such confidentiality agreements as Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 reg
Appears in 2 contracts
Sources: Registration Rights Agreement (Informatica Inc.), Registration Rights Agreement (Informatica Inc.)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file In connection with the SEC a Company's registration statement on an appropriate registration form of obligations pursuant to Section 3 or Section 4 hereof, the SEC for Company shall effect such registrations to permit the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration and pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form (i) under the Securities Act that shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause each such registration statement Registration Statement to become effective and remain continuously effective for as provided herein. Before filing any Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or otherwise make available to the holders of the Registrable Securities covered by such period as any Participating Holder pursuant to such registration statement shall requestRegistration State- ment, the Special Counsel and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder holders, the Special Counsel and its plan of distribution and otherwise to the extent necessarysuch underwriters, if at allany; provided, however, that the Company shall not be required to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by deliver to such counsel and -------- ------- holders a copy of any such document that has not been materially changed from a copy of such document that was previously delivered to such holders. The Compa- ny shall not file any Offering Document such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents which, upon filing, would or would be incorporated or deemed to be incorporated by reference therein) to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, the Special Counsel or the underwritersmanaging underwriter, if any, shall reasonably object, providedin writing, that, notwithstanding the foregoingon a timely basis unless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law.
(ib) prepare Prepare and file with the SEC such amendments, post-amendments and post- effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 such during the period provided herein with respect to the disposition of the Registrable Securities covered thereby; cause the related Prospectus to be supplemented by any required Pro- spectus supplement, and as any Participating Holder so supplemented to be filed pursuant to such registration statement shall request Rule 424 (or any similar provisions then in force) under the Securities Act; and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement Registration Statement during the applicable period in accordance accor- dance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration Registration Statement as so amended or to such Prospectus as so supple- mented.
(c) Notify the selling holders of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities , the Special Counsel and the Managermanaging underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing:
(i) when a Prospectus or any Prospectus supplement or post- effective amendment has been filed, and, with respect to a Registration State- ment or any post-effective amendment, when the same has become effective, (ii) of Splitco’s 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 (provided, that -------- the Company shall not be required to notify the holders or the Special Counsel of all "comment" letters or the Company's responses thereto to the holders or the Special Counsel unless such letters request information from or about the holders),
(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 of any proceedings for that purpose,
(iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by Section 6(n) (including any underwriting agreement) below cease to be true and correct,
(v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose,
(vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or that requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or 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 is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) of the Company's reasonable determination that a post-effective amendment to a registration statement Registration Statement would be appropriate;.
(cd) furnishUse its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, without chargeor the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriters, if any, or any holder of Registrable Securities being sold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holder reasonably agree should be included therein as may be required by applicable law, (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to any Registration Statement; provided, however, that the -------- ------- Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applica- ble law.
(f) Furnish to each Participating Holder selling holder of Registrable Securities, the Special Counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement or Statements and any post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated therein by reference or deemed incorporat- ed therein by reference and all exhibits, unless requested in writing by such registration statement such number holder, Special Counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, the Special Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses relating to such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Registrable Securities (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller Persons may request; and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco Company hereby consenting consents to the use in accordance with all applicable laws of such Prospectus or each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus or prospectus);any amendment or supplement thereto.
(dh) Prior to any public offering of Registrable Securities, to use its reasonable best efforts to register or qualify or cooperate with the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers selling holders of Registrable Securities or any managing underwriterSecurities, the underwriters, if any, shall and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Secu- rities for offer and sale under the securities or Blue Sky laws of such juris- dictions within the United States as any seller or underwriter reasonably request 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 and or things which may be reasonably 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 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 any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends; and enable such Registrable Securities to be registered in such names as the managing underwriters, if any, shall request at least two business days prior to any sale of Registrable Secu- rities to the underwriters.
(j) Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other govern- mental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder's busi- ness, in which case the Company will cooperate in all respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;Securities.
(ek) promptly notify Upon the occurrence of any event contemplated by Section 6(c)(vi) or 6(c)(vii) above, prepare a supplement or post-effective amendment to each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when Registration Statement or a supplement to the registration statement related Prospectus or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request document incorporated therein by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreementreference, or file any other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Use its best efforts to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement Registration Statement to be (i) listed on the principal each securities exchange ex- change, if any, on which similar securities issued by Splitco the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchangelisted, or (ii) if no similar securities are then so listed, to either cause all such Registrable Securities authorized to be listed quoted on a national securities exchange or to secure designation of all such Registrable Securities as a The Nasdaq Stock Market National Market “national market system security” within if the meaning securities so qualify; in each case, if requested by the holders of Rule 11Aa2-1 a majority of shares of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 Registra- tion Statement or the managing underwriters, if any.
(m) Prior to the effective date of such registration statement; the Registration Statement relating to the Registrable Securities, (i) provide the transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and (ii) instruct provide a CUSIP number for the Registrable Securities.
(n) Enter into such transfer agent agreements (Aincluding an underwriting agreement in form, scope and substance as is customary in underwritten offer- ings) to releaseand take all such other actions in connection therewith (including those reasonably requested by the managing underwriters, on such effective dateif any, any stop transfer order with respect to or the certificates with respect to holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connec- tion, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration:
(it being understood that i) make such representations and warranties to the Holders holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Registrable Securities which Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incor- porated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to be distributed by any underwriters shall be parties to any such underwriting agreement in underwritten offerings and, if true, confirm the same if and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)when requested;
(jii) use its reasonable best efforts (i) to obtain an opinion from Splitco’s 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 underwrit- ers, if any, and the holders of a “majority of the Registrable Securities being sold) addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters, including without limitation the matters referred to in Section 6(n)(i) above;
(iii) use its reasonable best efforts to obtain "cold comfort” letter com- fort" letters and updates thereof from the independent certified public accountants who have of the Company (and, if necessary, any other certified Splitco’s public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements (and/or any other and financial statements) data is, or is required to be, 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 “cold comfort” letters (including, in the case Registration Statement), addressed to each selling holder of Registrable Securities (unless such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter accountants shall be dated prohibited from so addressing such letters by applicable standards of the dates such opinions accounting profession) and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to each of the underwriters, if any, such letters to be in customary form and to covering matters of the Participating Holderstype 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 Special Counsel and (ii) furnish to each Participating Holder upon its request and to each underwriterthe managing underwriters, if any, a copy to evidence the continued validity of such opinion the representations and letter addressed warranties of the Company and its subsidiaries made pursuant to such underwriter;clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
(ko) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably Make available for inspection by counsel for each Participating Holdera representative of the holders of Registrable Securities being sold, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement of Registrable Securities, if any, and by any attorney, accountant attorney or other agent accoun- tant retained by any Participating Holder such selling holders or any such underwriter, (collectivelyat the offices where normally kept, the “Inspectors”)during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its subsidiaries to supply the all information reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with such registration statement;
Registration Statement; provided, however, that any records, information or -------- ------- documents that are designated by the Company in writing as confidential at the time of delivery of such records, information or documents shall be kept confi- dential by such Persons unless (li) use its reasonable best efforts such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order or is necessary to prevent the issuance respond to inquiries of regulatory authorities or obtain the withdrawal (iii) disclosure of any order suspending the effectiveness of the registration statementsuch records, information or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdictiondocuments, in each casethe opinion of counsel to such Person, as promptly as reasonably practicable;
is otherwise required by law (m) provide a CUSIP number for all Registrable Securitiesincluding, not later than the effective date of the registration statement;
(n) use its reasonable best efforts without limitation, pursuant 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 statementAct), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding . Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in no event shall Splitco be required to file any document with securities of the SEC which in the view of Splitco Company or its counsel contains an untrue statement subsidiaries in ▇▇▇▇▇- tion of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);law.
(p) furnish to counsel for each Participating Holder upon its request Comply with all applicable rules and to each managing underwriter, without charge, upon request, at least one conformed copy regulations of the registration statement SEC and any post-effective amendments or supplements thereto, including financial make generally available to its securityholders earning statements and schedules, all documents incorporated therein by reference, the prospectus contained in such regsa
Appears in 2 contracts
Sources: Registration Rights Agreement (Simons Stephen W), Registration Rights Agreement (Turner Paul H)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 and Section 4 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and filed. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of applicable law.
(b) If such Registration Statement is a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;Shelf Registration Statement:
(i) prepare Subject to any notice by the Company in accordance with this Section 6(b) of the existence of any fact or event of the kind described in Section 6(d)(vi), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of the Registrable Securities covered thereby during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15 (d) of the Exchange Act, in the case of clause (A) of this Section 6(b)(i), correcting any such misstatement or omission, and, in the case of either clause (A) or (B) of this Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter.
(ii) Notwithstanding Section 6(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “Suspension Period”):
(A) if a majority of the Company’s board of directors, in good faith, determines that (1) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company, (2) after the advice of counsel, the sale of the shares of Common Stock covered by the Shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (3) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the SEC; or
(B) if a majority of the Company’s board of directors, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (1) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus, or (3) including in the Prospectus included in the Shelf Registration Statement any material information with respect to the plan of distribution not disclosed in the Shelf Registration Statement or any material change to such information. Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the Company shall give notice to each Demanding Qualified Holder with respect to such Shelf Registration Statement that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section 6(b). The Suspension Period shall not exceed 60 days in any 90-day period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable efforts to cause such post-effective amendment to be declared effective); provided, that Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period. The Company shall not be required to specify in the written notice to the Qualified Holders the nature of the event giving rise to the Suspension Period.
(c) Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(d) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension if the effectiveness of a Shelf Registration Statement has been suspended pursuant to Section 6 (b)), (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 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 and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Use its commercially reasonable 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.
(f) If requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(f) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(g) Furnish to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, at least one (1) conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(h) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(di) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(j) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(k) Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of such Registrable Securities.
(l) Upon the Registrable Securities in such jurisdictions (including keeping such registration occurrence of any event contemplated by Section 6(d)(vi) above, prepare a supplement or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required post-effective amendment to qualify the Registration Statement or a supplement to do business as a foreign corporation in the related Prospectus or any jurisdiction where it would not, but for the requirements of this paragraph (d), be required document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fm) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gn) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;Registration Statement.
(o) promptly prior Use its commercially reasonable efforts to the filing cause all shares of any document which is Registrable Securities covered by such Registration Statement 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 or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required authorized to be stated therein quoted on the Nasdaq Global Market or necessary to make any statement therein not misleading);listed on another national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the Nasdaq Global Market or listed on such exchange, as the case may be.
(p) furnish to counsel for each Participating Holder upon its request Enter into such agreements (including an underwriting agreement in form, scope and to each managing underwriter, without charge, upon request, at least one conformed copy substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority 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 regRegistrabl
Appears in 2 contracts
Sources: Registration Rights Agreement (Approach Resources Inc), Registration Rights Agreement (Approach Resources Inc)
Registration Procedures. If and whenever Splitco is required by Whenever a Shareholder requests that any Registrable Securities be registered pursuant to Section 2.01 or 2.02, subject to the provisions of this Agreement such Sections, the Company shall use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities under and the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by Splitco and (ii) shallthereof as quickly as practicable and, in connection with any such request:
(a) The Company shall prepare and file with the case of SEC a shelf registration, 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 by to be registered thereunder in accordance with the selling Holders thereof intended method of distribution thereof, and use its commercially reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Registering Shareholders included in such registration statement shall comply have actually been sold thereunder).
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to each participating Shareholder and each underwriter, if any, of the Registrable Securities covered by such registration statement copies of such registration statement as proposed to form in be filed, and thereafter, to the extent such documents are not publicly available on the SEC’s E▇▇▇▇ website, the Company shall furnish to such Shareholder and each underwriter, without charge, at least one conformed copy of each registration statement and each amendment thereto, including financial statements and schedules, all material respects documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Shareholder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the requirements of SEC. The Shareholder shall have the applicable right to request that the Company modify any information contained in such registration form statement, amendment and include all financial statements required by supplement thereto pertaining to such Shareholder and the SEC to be filed therewith, and Splitco Company shall use its commercially reasonable best efforts to cause comply with such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (; provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response the Company shall not have any obligation so to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to modify any information pertaining if the Company reasonably expects that doing so would cause the prospectus to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains contain an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make any statement the statements therein not misleading;.
(c) After the filing of the registration statement, the Company shall (i) prepare and file with cause the SEC such amendmentsrelated prospectus to be supplemented by any required prospectus supplement, post-effective amendments and supplements (includingand, without limitationas so supplemented, any reports required to be filed pursuant to Rule 424 under the Exchange Securities Act, (ii) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the seller or sellers Registering Shareholders thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease statement or supplement to be Registrable Securities; such prospectus and (iiiii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to promptly notify each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registering Shareholder holding Registrable Securities covered by such registration statement of any stop order issued or prospectus);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 the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions in the United States as any sellers of Registering Shareholder holding such Registrable Securities reasonably (in light of such Shareholder’s intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or any managing underwriter, if any, shall reasonably request in writing, 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 which that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, Shareholder to consummate the disposition of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except Shareholder; provided that in no event the Company shall Splitco not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualifiedqualify but for this Section 2.04(d), to (B) subject itself to taxation in any such jurisdiction or to (C) consent to general service of process in any such jurisdiction;.
(e) promptly The Company shall immediately notify each Participating Holder and each managing underwriter, if any and, if requested by any Registering Shareholder holding such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of covered by such registration statement, at any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of when a material fact or omitting to state a material fact prospectus relating thereto is required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time delivered under the representations and warranties contemplated by any underwriting agreementSecurities Act, securities sale agreement, or other similar agreement, relating to of the offering shall cease to be true and correct in all material respects; and, if the notification relates to occurrence of an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies requiring the preparation of a supplement or amendment to such prospectus supplemented or amended 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 in not misleading and promptly prepare and make available to each such Shareholder and file with the light of the circumstances under which they were made not misleading;SEC any such supplement or amendment.
(f) comply (and continue to comply) The Company shall select an underwriter or underwriters in connection with all applicable rules and regulations of any Public Offering. In connection with any Public Offering, the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement Company shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, including an underwriting agreementagreement in customary form) and take such all other actions as the Participating Holders or the underwriters shall are reasonably request required in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that in any such Public Offering, including the Holders engagement of a “qualified independent underwriter” in connection with the qualification 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 Splitco make to and for arrangements with the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);NASD.
(jg) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference Upon execution of confidentiality agreements in such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise substance reasonably satisfactory to the underwritersCompany, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, Company shall make reasonably available for inspection by counsel for each Participating Holder, by counsel for any Registering Shareholder and any underwriter participating in any disposition to be effected pursuant to such a registration statement being filed by the Company pursuant to this Section 2.04 and by any attorney, accountant or other agent professional retained by any Participating Holder such Shareholder or any such underwriter, underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco the Company (collectively, the “Records”), ) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel the Company’s officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector Inspectors in connection with such registration 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 (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, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company. The Shareholder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such information is made generally available to the public. The Shareholder further agrees that, upon learning that disclosure of such Records is required by court or administrative order or necessary to respond to inquiries of regulatory authorities, it shall give prompt notice to the Company in advance of such disclosure and allow the Company to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(lh) The Company shall furnish to each Registering Shareholder and to each such underwriter, if any, a signed counterpart, addressed to such Shareholder or underwriter, of a comfort letter or comfort letters from the Company’s independent public accountants, in form and substance as are customary in connection with underwritten public offerings.
(i) The Company may require each such Registering Shareholder promptly to furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration.
(j) The Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.04(e), such Shareholder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Shareholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.04(e), and, if so directed by the Company, such Shareholder shall deliver to the Company all copies, other than any permanent file copies then in such Shareholder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. If the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 2.04(a)) by the number of days during the period from and including the date of the giving of notice pursuant to Section 2.04(e) to the date when the Company shall make available to such Shareholder a prospectus supplemented or amended to conform with the requirements of Section 2.04(e).
(k) The Company shall use its commercially reasonable best efforts to prevent the issuance list all Registrable Securities covered by such registration statement on any securities exchange or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of quotation system on which any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;are then listed or traded.
(ml) provide a CUSIP number for all Registrable Securities, not later than the effective date The Company shall have appropriate officers of the registration statement;
Company (ni) use its reasonable best efforts to prepare and make available its employees and personnel for participation in presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other marketing actions to obtain ratings for any Registrable Securities and (iii) otherwise use their commercially reasonable efforts and otherwise provide reasonable assistance to cooperate as reasonably requested by the underwriters (taking into account in the needs offering, marketing or selling of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regSecurities.
Appears in 2 contracts
Sources: Partnership Agreement (Thomas Weisel Partners Group, Inc.), Partners’ Equity Agreement (Thomas Weisel Partners Group, Inc.)
Registration Procedures. If and whenever Splitco is required by the provisions of this Agreement to effect or cause the registration of any Whenever Registrable Securities under are to be registered pursuant to this Agreement, the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect the same), Splitco shall, as expeditiously as possible:
(a) prepare registration and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method of disposition thereof (subject to the terms hereof), and pursuant thereto the Company shall:
(a) prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective within ninety (90) days of the initial filing thereof. Before filing a Registration Statement or Prospectus or any amendments or supplements thereto, which registration form (i) the Company shall be furnish to one firm of counsel selected by Splitco and (ii) shall, in the case holders of a shelf registration, be available for the sale majority of the Registrable Securities covered by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, Registration Statement copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment of such counsel within three (including any objections to any information pertaining to any Participating Holder and its plan 3) business days of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested receipt of such documents by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, counsel; provided, thathowever, notwithstanding the foregoing, that in no event shall Splitco the Company be required to file provide counsel for such holders any document Exchange Act Document prior to its filing other than in connection with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingUnderwritten Offering;
(ib) in the case of a Demand Registration, use its commercially reasonable efforts to prepare and file with the SEC Commission a Registration Statement with respect to such amendmentsRegistrable Securities within sixty (60) days of its receipt of a Demand Notice and use its commercially reasonable efforts to cause such Registration Statement to become effective within ninety (90) days of the initial filing thereof. Before filing a Registration Statement or Prospectus or any amendments or supplements thereto, post-effective the Company shall furnish to one firm of counsel selected by the holders of a majority of the Registrable Securities covered by such Registration Statement copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel within three (3) business days of receipt of such documents by such counsel; provided, however, that in no event shall the Company be required to provide counsel for such holders any Exchange Act Document prior to its filing other than in connection with an Underwritten Offering;
(c) notify each Eligible Holder of Registrable Securities of the effectiveness of each Registration Statement filed hereunder and prepare and file with the Commission such amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement continuously Registration Statement effective for a period of not less than one-hundred twenty (120) days (or, if sooner, until all Registrable Securities have been sold under such Registration Statement) (or, in the case of a Shelf Registration, a period as any Participating Holder ending on the date on which all Registrable Securities have been sold pursuant to such registration statement shall request the Shelf Registration) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue Registration Statement (in each case subject to any registration of its securities that cease Suspension Period);
(d) furnish to be Registrable Securities; and (ii) provide notice to such sellers each seller of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectusProspectus) and any such other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, documents as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)seller;
(de) use its commercially reasonable best efforts (i) to register or qualify the such Registrable Securities covered by such registration statement under such other securities or state “blue sky” sky laws of such jurisdictions as any sellers of Registrable Securities seller reasonably requests, (ii) to keep such registration or any managing underwriter, if any, shall reasonably request qualification in writingeffect for so long as such Registration Statement remains in effect, and (iii) to do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, seller to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions seller (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except provided that in no event the Company shall Splitco not be required to (x) qualify generally to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to be so qualifiedqualify but for this subsection, to (y) subject itself to taxation in any such jurisdiction or to (z) consent to general service of process in any such jurisdiction);
(ef) promptly notify each Participating Holder seller of such Registrable Securities and each any managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: underwriter (i) at any time when a Prospectus relating thereto is required to be delivered under the registration statement Securities Act (A) upon discovery that, or any other Offering Document has been filed with upon the SEC and, with respect to the Offering Document, when the same has become effective; (ii) happening of any comment letter or request by event as a result of which, the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for Prospectus included in such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing Registration Statement includes an untrue statement of a material fact or omitting omits to state a material fact required to be stated therein or necessary in order to make any statement therein the statements therein, in light of the circumstances under which they were made, 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, if at the notification relates request of any such seller and subject to an event described in clause (v)any Suspension Period, unless Splitco has declared that a Postponement Period exists, Splitco the Company shall promptly prepare a supplement or amendment to such Prospectus and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended file it with the Commission so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus as so amended or supplemented shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, (B) as soon as the Company becomes aware of any request by the Commission or any Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus covering Registrable Securities or for additional information relating thereto, (C) as soon as the Company becomes aware of the issuance or threatened issuance by the Commission of any stop order suspending or threatening to suspend the effectiveness of a Registration Statement covering the Registrable Securities or (D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (ii) when each Registration Statement or any amendment thereto has been filed with the Commission and when each Registration Statement or any post-effective amendment thereto has become effective;
(fg) use its commercially reasonable efforts to cause all such Registrable Securities (i) if either the Common Stock or New Notes are then listed on a securities exchange or included for quotation in a recognized trading market, to continue to be so listed or included, and (ii) to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of the Registrable Securities;
(h) provide and cause to be maintained a transfer agent and registrar chosen by the Company for all such Registrable Securities from and after the effective date of such Registration Statement;
(i) enter into such customary agreements (including underwriting agreements in customary form, provided that the Company’s indemnity and contribution obligations (and related procedures) to any Person in any underwriting or similar agreement shall be substantially equivalent to the provisions of Section 7) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) for a reasonable period prior to the filing of any Registration Statement or a Shelf Takedown, as applicable, pursuant to this Agreement, make available for review by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement, one firm of counsel for all of the Eligible Holders and one firm of counsel representing any underwriters and any one firm of accountants retained by either the Eligible Holders or any underwriters, copies of 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 copies of all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that any information that is designated in writing by the Company, in good faith, as confidential at the time of delivery of such information shall be kept confidential by the requesting party or any such seller of Registrable Securities, underwriter, attorney, accountant or other agent, unless such disclosure is made in connection with a court proceeding or required by law, or such information becomes available to the public generally or through a third party (other than as a result of a breach of such confidentiality provisions) without an accompanying obligation of confidentiality;
(k) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)Commission, and make generally available to its security holders, as soon as reasonably practicable practicable, after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)Registration Statement, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitcothe Company’s first full calendar quarter after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(gl) (i) cause permit any Eligible Holder of Registrable Securities, any underwriter participating in any disposition pursuant to a Registration Statement, attorneys from one firm of counsel for all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality Eligible Holders and one firm of the foregoing, take all actions that may be required by Splitco 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 FINRAcounsel representing any underwriters, and comply (and continue to comply) with accountants from one firm of accountants retained by either the requirements Eligible Holders of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; underwriters, to participate (including, but not limited to, reviewing, commenting on and (iiiattending all meetings) in the case preparation of such Registration Statement and any secondary equity offering, provide and enter into any reasonable agreements with Prospectus supplements relating to a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingShelf Takedown, if applicable, an underwriting agreement) and take such other actions as to require the Participating Holders insertion therein of information regarding the sellers, the underwriters or the underwriters shall reasonably request in order to expedite or facilitate the plan of disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities Securities, furnished to the Company in writing, which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for in the benefit reasonable judgment of such Holders the representations, warranties holders or underwriters and covenants of Splitco which are being made to and for the benefit of such underwriters)their respective counsel should be included;
(jm) in the event of the issuance or threatened issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Securities included in such Registration Statement for sale in any jurisdiction, use its commercially reasonable best efforts promptly to (i) prevent the issuance of any such stop order, and in the event of such issuance, to obtain an opinion from Splitco’s counsel the withdrawal of such order and (ii) obtain the withdrawal of any order suspending or preventing the use of any related Prospectus or suspending qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction at the earliest practicable date;
(n) obtain and furnish to each such holder of Registrable Securities a “copy of a signed counterpart of (i) a cold comfort” comfort letter and updates thereof from the Company’s independent public accountants who have certified Splitco’s financial statements and (and/or any other financial statementsii) included or incorporated by reference in a legal opinion of counsel to the Company addressed to such registration statementholders of Registrable Securities, in each case, case in customary form and covering such matters as are of the type customarily covered by such opinions and “cold comfort” letters as the managing underwriter and/or holders of a majority of the Registrable Securities being sold reasonably request;
(includingo) promptly notify in writing the Eligible Holders, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriterssales or placement agent, if any, therefor and the managing underwriter of the securities being sold, (i) when such Registration Statement or the Prospectus included therein or any Prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to any such Registration Statement or any post-effective amendment, when the Participating Holders, same has become effective and (ii) furnish to each Participating Holder upon its request of any written comments by the Commission and to each underwriter, if any, a copy by the blue sky or securities commissioner or regulator of such opinion and letter addressed to such underwriterany state with respect thereto;
(kp) deliver promptly to counsel for each Participating Holder (i) prepare and file with the Commission such amendments and supplements to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating Registration Statement as may be necessary to discussions comply with the SEC provisions of the Securities Act, including post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective (subject to any Suspension Period) for the applicable time period required hereunder and if applicable, file any Registration Statements pursuant to Rule 462(b) under the Securities Act; (ii) cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or its staff any similar provisions then in force) promulgated under the Securities Act; (iii) comply with the provisions of the Securities Act and the Exchange Act with respect to the registration statementdisposition of all Registrable 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 as so amended or in such Prospectus as so supplemented; (iv) provide additional information related to each Registration Statement as requested by the Commission or any Federal or state governmental authority; and (v) if the holders of a majority of the Registrable Securities participating in a Demand Registration so request, andrequest acceleration of effectiveness from the Commission of the Demand Registration and any post-effective amendments thereto, upon receipt if any are filed; provided, however, that at the time of such confidentiality agreements as Splitco may reasonably request, make reasonably available for inspection by counsel for the Company does not in good faith believe that it is necessary to amend further the Registration Statement in order to comply with the provisions of this subparagraph;
(q) cooperate with each Participating Holder, by counsel for any Eligible Holder and each underwriter participating in the disposition of such Registrable Securities and underwriters’ counsel in connection with any disposition filings required to be effected pursuant made with FINRA;
(r) use its commercially reasonable efforts to such registration statement and by any attorneyassist an Eligible Holder in facilitating private sales of Registrable Securities by, accountant or among other agent retained by any Participating Holder or any such underwriterthings, (collectively, the “Inspectors”), all pertinent financial providing officers’ certificates and other records, pertinent corporate customary closing documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection Eligible Holder (so long as the Company believes that such private sales comply with such registration statement;the Securities Act); and
(ls) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of take all other actions reasonably necessary to effect the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regcontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (DEX ONE Corp), Registration Rights Agreement (R H Donnelley Corp)
Registration Procedures. If (a) In connection with the Company’s Registration obligations under Section 2.01 and whenever Splitco is required by Section 2.02, the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect such Registration to permit the same), Splitco shall, as expeditiously as possible:
(a) prepare offer and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition Sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofdistribution thereof as expeditiously as reasonably practicable, which registration form and in connection therewith, the Company shall use reasonable best efforts to:
(i) shall be selected by Splitco prepare and (ii) shallfile the required Registration Statement, including all exhibits and financial statements and, in the case of a shelf registrationan Exchange Offer, be available for any document required under Rule 425 or Rule 165 with respect to such Exchange Offer (collectively, the sale of “Ancillary Filings”) required under the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC Act to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as before filing with the SEC a Registration Statement or Prospectus, or any Participating Holder pursuant to such registration statement shall request, and no less than 180 daysamendments or supplements thereto, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will A) furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters or dealer managers, if any, and to the Holders, copies of reasonably complete drafts of all such documents proposed prepared to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will shall be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder underwriters or dealer managers and its plan of distribution such Holders and otherwise to the extent necessarytheir respective counsel, and provide such underwriters or dealers managers, if at all, to complete the filing or maintain the effectiveness thereof)any, and Splitco shall make the changes reasonably requested by such Holders and their respective counsel reasonable time to review and shall comment thereon and (B) not file with the SEC any Offering Document Registration Statement or Prospectus or amendments or supplements thereto or any Ancillary Filing to which the Participating Holders or the underwritersunderwriters or dealer managers, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(iii) prepare and file with the SEC such amendments, amendments and post-effective amendments to such Registration Statement and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Prospectus and the prospectus used in connection therewith any Ancillary Filing as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with the intended methods of disposition reasonably requested by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and participating Holders;
(iiiii) provide notice to such sellers of Registrable Securities promptly notify the participating Holders and the Managermanaging underwriters or dealer managers, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriterand, if anyrequested, confirm such advice in writing and provide copies of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other relevant documents, as such seller and underwriter may soon as reasonably request in order to facilitate practicable after notice thereof is received by the public sale or other disposition of the Registrable Securities owned by such seller Company (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (iA) when the registration statement applicable Registration Statement or any other Offering Document amendment thereto has been filed with or becomes effective, the SEC andapplicable Prospectus or any amendment or supplement to such Prospectus has been filed, with respect to the Offering Documentor any Ancillary Filing has been filed, when the same has become effective; (iiB) of any comment letter comments (written or request oral) by the SEC or state securities authority any request (written or oral) by the SEC or any other Governmental Authority for amendments or supplements to the registration statement such Registration Statement, such Prospectus or the prospectus related thereto any Ancillary Filing, or for any additional information; , (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement, any order preventing or suspending the registration statement use of any preliminary or final Prospectus or any Ancillary Filing, or the initiation or threatening of any proceedings for that purpose; such purposes, (ivD) if, at any time, the representations and warranties (written or oral) in any applicable underwriting agreement or dealer manager agreement cease to be true and correct in all material respects and (E) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities offering or state “blue sky” laws of Sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; ;
(vA) promptly notify each participating Holder and the managing underwriter(s) or dealer manager(s), if any, when the Company becomes aware of the existence occurrence of any fact event as a result of which Splitco becomes aware which results the applicable Registration Statement, the Prospectus included in the Offering Document such Registration Statement (as then in effect) or the information conveyed to any purchaser at the time of sale to such purchaser containing an Ancillary Filing contains any untrue statement of a material fact or omitting omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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 light of the circumstances under which they were made made) not misleading, or if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement, Prospectus or any Ancillary Filing in order to comply with the Securities Act, and (B) in either case, as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to each participating Holder and the underwriter(s) or dealer manager(s), if any, an amendment or supplement to such Registration Statement, Prospectus or Ancillary Filing that will correct such statement or omission or effect such compliance;
(fv) comply use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(and continue to complyvi) with all applicable rules and regulations of promptly (A) incorporate in a Prospectus supplement or post-effective amendment such information as the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)managing underwriter(s) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Actor dealer manager(s), if any, and the Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities and (B) make generally available to its security holders, all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) furnish to each participating Holder and each underwriter or dealer manager, if any, without charge, as many conformed copies as such Holder or underwriter or dealer manager may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, but excluding all documents and exhibits (i) incorporated therein by reference or (ii) that are available via the SEC’s ▇▇▇▇▇ system;
(viii) deliver to each participating Holder and each underwriter or dealer manager, if any, without charge, as many copies of the applicable Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder or underwriter or dealer manager may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto by each participating Holder and the underwriter(s) or dealer manager(s), if any, in connection with the offering and Sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such participating Holder or underwriter or dealer manager may reasonably request in order to facilitate the Sale of the Registrable Securities by such Holder or underwriter or dealer manager;
(ix) on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify, and cooperate with each participating Holder, the managing underwriter(s) or dealer manager(s), 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 participating Holder or managing underwriter(s) or dealer manager(s), if any, or their respective counsel reasonably request, and in any foreign jurisdiction mutually agreeable to the Company and the participating Holders, and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the continuance of offers and Sales and dealings in such jurisdictions for so long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject or conform its capitalization or the composition of its assets at the time to the securities or blue sky laws of any such jurisdiction;
(x) in connection with any Sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each participating Holder and the managing underwriter(s) or dealer manager(s), if any, to (A) facilitate the timely preparation and delivery of certificates representing Registrable Securities to be Sold and not bearing any restrictive Securities Act legends and (B) register such Registrable Securities in such denominations and such names as such participating Holder or the underwriter(s) or dealer manager(s), if any, may request at least two Business Days prior to such Sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xi) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter or dealer manager (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other Governmental Authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s) or dealer manager(s), if any, to consummate the Sale of such Registrable Securities;
(xii) not later than the effective date of the registration statement applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with the Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xiii) obtain for delivery to and in any event within forty-five (45addressed to each participating Holder and to the underwriter(s) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafterdealer manager(s), an earnings statement (which need not be audited) covering if any, opinions from the period of at least twelve (12) consecutive months beginning with general counsel or deputy general counsel for the first day of Splitco’s first calendar quarter after Company, in each case dated the effective date of the registration statementRegistration Statement or, which earnings statement shall satisfy in the provisions event of Section 11(a) an Underwritten Offering, the date of the Securities Act closing under the underwriting agreement or, in the event of an Exchange Offer, the date of the closing under the dealer manager agreement or similar agreement or otherwise, and Rule 158 thereunderin each such case in customary form and content for the type of Underwritten Offering or Exchange Offer, as applicable;
(gxiv) (iin the case of an Underwritten Offering or Exchange Offer, obtain for delivery to and addressed to the Company and the managing underwriter(s) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco are then listed (if anyor dealer manager(s), if the listing of such Registrable Securities is then permitted under the rules of such exchangeany, or (ii) if no similar securities are then so listedand, to either cause all such Registrable Securities to be listed on the extent requested, each participating Holder, a national securities exchange cold comfort letter from the Company’s independent registered public accounting firm in customary form and content for the type of Underwritten Offering or to secure designation Exchange Offer, dated the date of all such Registrable Securities as a Nasdaq National Market “national market system security” within execution of the meaning underwriting agreement or dealer manager agreement or, if none, the date of Rule 11Aa2-1 commencement of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 FINRAOffer, and comply (and continue brought down to comply) with the requirements of any self-regulatory organization applicable to Splitcoclosing, including without limitation all corporate governance requirementswhether under the underwriting agreement or dealer manager agreement, if applicable, or otherwise;
(ixv) in the case of an Exchange Offer that does not involve a dealer manager, provide to each participating Holder such customary written representations and warranties or other covenants or agreements as may be requested by any participating Holder comparable to those that would be included in an underwriting or dealer manager agreement;
(xvi) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement the applicable Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iixvii) instruct such transfer agent cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted;
(xviii) provide (A) to releaseeach Holder participating in the Registration, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) the underwriters (which term, for purposes of this Agreement, shall include any Person deemed to furnish certificates without restrictive legends representing ownership be an underwriter within the meaning of Section 2(a)(11) of the shares being soldSecurities Act), in such denominations requested by the sellers if any, of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 mayregistered, at their option, require that Splitco make to and for (C) the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included Sale 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersplacement agent therefor, if any, and to (D) the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriterdealer manager therefor, if any, a copy of such opinion and letter addressed to such underwriter;
(kE) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 underwriters, agent, or dealer manager and by (F) any attorney, accountant or other agent or representative retained by any Participating such Holder or any such underwriterunderwriter or dealer manager, (collectivelyas selected by such Holder, in each case, the “Inspectors”)opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto; and for a reasonable period prior to the filing of such Registration Statement, upon execution of a customary confidentiality agreement, make available for inspection upon reasonable notice at reasonable times and for reasonable periods, by the parties referred to in clauses (A) through (F) above, all pertinent financial and other records, pertinent corporate and other documents and properties of Splitco (the “Records”)Company and its Subsidiaries that are available to the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such Person in connection with such Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence or other responsibility, and subject to use reasonable best efforts the foregoing; provided, that in no event shall the Company be required to cause applicable personnel and representatives make available any information which the Board determines in good faith to be competitively sensitive or confidential. The recipients of Splitco to meet such information shall coordinate with one another so that the inspection permitted hereunder will not unnecessarily interfere with the Inspectors Company’s conduct of business. 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 by the Company or such Affiliate or for any reason not related to the Registration of Registrable Securities;
(if so requestedxix) in the case of an Underwritten Offering or Exchange Offer, cause the senior executive officers of the Company to participate at reasonable times and to supply for reasonable periods in the information customary “road show” presentations that may be reasonably requested by any such Inspector in connection with such registration statement;
(lthe managing underwriter(s) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 statementdealer manager(s), and prior to the filing or use 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 representatives of Splitcootherwise to facilitate, any Subsidiarycooperate with, and, and participate in each case, any successor proposed offering contemplated herein and customary selling efforts related thereto, reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior except to the filing thereof as counsel for extent that such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document participation materially interferes with the SEC which in management of the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading)Company’s business;
(pxx) comply with all requirements of the Securities Act, Exchange Act and other applicable laws, rules and regulations, as well as all applicable stock exchange rules; and
(xxi) take all other customary steps reasonably necessary or advisable to effect the Registration and distribution of the Registrable Securities contemplated hereby.
(b) As a condition precedent to any Registration hereunder, the Company may require each Holder as to which any Registration is being effected to furnish to counsel for each Participating Holder upon the Company such information regarding the distribution of such securities and such other information relating to such Holder, its request ownership of Registrable Securities and to each managing underwriter, without charge, upon request, at least one conformed copy of other matters as 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 reg
Appears in 2 contracts
Sources: Shareholders Agreement (Icahn Enterprises Holdings L.P.), Membership Interest Purchase Agreement (Tenneco Inc)
Registration Procedures. If and whenever Splitco is required by In connection with the provisions of this Agreement Company's registration obligations pursuant to Section 2 or 3 hereof, the Company will use its commercially reasonable efforts to effect or cause such registration to permit the registration sale of any such Registrable Securities under in accordance with the Securities Act as provided in this Agreement (intended method or methods of distribution thereof, and pursuant thereto the Company will use best efforts or commercially reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC SEC, as soon as practicable, a Registration Statement relating to the applicable registration statement on an any appropriate registration form of under the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) Act that shall be selected by Splitco 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 accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, effective; provided that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filingincluding documents incorporated by reference after the initial filing of the Registration Statement, Splitco the Company will furnish to one counsel for the Holders participating in Investor and the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review of the Investor and reasonable comment the underwriters, if any; provided, further, that the Company shall not be required to deliver to the Investor or the underwriters a copy of any such document that has not been materially changed from a copy of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise document that was previously delivered to the extent necessary, if at all, to complete Investor and the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall underwriters. The Company will not file any Offering Document Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the Participating Holders Investor or the underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event the opinion of the Company, such filing is necessary to comply with applicable law;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities included in such Registration Statement have been sold; cause the Prospectus to be 6 supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) notify the Investor and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (l) when the Registration Statement, the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information (provided that the Company shall Splitco not be required to file notify the Investor of all "comment" letters received by the Company from the SEC or to deliver copies of such comment letters or the Company's responses thereto to the Investor unless such letters request information from or about the Investor), (3) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by Section 5(m)(1) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document with incorporated therein by reference untrue in any material respect or that requires the SEC which making of any changes in the view of Splitco Registration Statement, the Prospectus or its counsel does not comply with any document incorporated therein by reference so that, in the requirements case of the Securities Act or of the rules of regulations thereunder or contains an Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and that, in the case of the Prospectus, it will not contain any untrue statement therein 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;
(id) prepare and file with obtain the SEC such amendmentswithdrawal of any order suspending the effectiveness of the Registration Statement;
(e) if requested by the managing underwriter or underwriters or by the Investor, promptly incorporate in a Prospectus supplement or post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant amendment to the Exchange Act) to Registration Statement such registration statement information as the managing underwriters and the prospectus used Investor reasonably request in connection therewith as may be necessary order to keep such registration statement continuously effective for such period as any Participating Holder 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 Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration of its securities actions under this Section 5(e) that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateare not in compliance with applicable law;
(cf) furnish, without charge, furnish to each Participating Holder the Investor and each managing underwriter, if any, without charge, at least one signed copy of the securities covered Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by such registration statement such number of reference and all exhibits (including those incorporated by reference);
(g) deliver to the Investor and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement 7 thereto as such seller and underwriter Persons may reasonably request in order to facilitate request; the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting Company consents to the use in accordance with all applicable laws of the Prospectus (including each such Offering Document preliminary prospectus) or any amendment or supplement thereto by each such Participating Holder the Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement the Prospectus or prospectus)any amendment or supplement thereto;
(dh) use its reasonable best efforts prior to any public offering of Registrable Securities, register or qualify or cooperate with the Investor, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” sky laws of such jurisdictions within the United States as any sellers of Registrable Securities the Investor or any managing underwriter, if any, shall underwriter reasonably request requests in writing, writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable the disposition in such sellers jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it not then so qualified or underwriter(B) take any action that would subject the Company to general service of process or to taxation in any such jurisdiction where it is not then so subject;
(i) cooperate with the Investor and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Investor or the underwriters, if any, to consummate the disposition of the such Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionSecurities;
(ek) promptly notify each Participating Holder and each managing underwriterupon the occurrence of any event contemplated by Section 5(c)(6) above, if any and, if requested by any such Person, confirm such notice in writing: (i) when prepare a supplement or post-effective amendment to the registration statement Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable Securities, such prospectus shall the Prospectus 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 the light of the circumstances under which they were made made, not misleading;
(fl) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Investor or the managing underwriter or underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, (1) make such representations and warranties to the Investor, and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters 8 in primary underwritten offerings; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Investor and the managing underwriters, if any, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by the Investor and the underwriters, if any; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the Investor and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary Underwritten Offerings (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession); (4) if an underwriting agreement is entered into, the same shall contain the indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) deliver such documents and certificates as may be reasonably requested by the Investor and the managing underwriters, if any, to evidence compliance with clause (1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(n) make available for inspection by a representative of the Investor, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the Investor or any underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and cause the Company's officers, trust managers and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that the Company designates in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Company or its subsidiaries in violation of law;
(o) otherwise comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Act; and
(gp) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) cooperate with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Investor 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, each underwriter participating in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"). The Company may require the Investor to furnish to the Company such information regarding the distribution of Registrable Securities as the Company may from time to time reasonably request in writing, and the Company may exclude from such registration the Registrable Securities of the Investor if it being understood that the Holders unreasonably fails to furnish such information within a reasonable time after receiving such request. 9 The Investor agrees by acquisition of the Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(c) (2), 5(c)(3), 5(c)(5) and 5(c)(6) hereof, the Investor will forthwith discontinue disposition of Registrable Securities until the Investor's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until it is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statementProspectus, and, upon if so directed by the Company, the Investor will deliver to the Company (at the Company's expense), all copies, other than permanent file copies then in the Investor's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such confidentiality agreements as Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regnotice.
Appears in 2 contracts
Sources: Registration Rights Agreement (American Industrial Properties Reit Inc), Registration Rights Agreement (American Industrial Properties Reit Inc)
Registration Procedures. If and whenever Splitco is required by the holders of Registrable Securities request that any Registrable Securities be registered pursuant to the provisions of this Agreement to effect or cause Agreement, the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect the same), Splitco shall, as expeditiously as possible:
(a) prepare registration and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as soon as reasonably practicable:
(a) within a reasonable time before filing such Registration Statement, Prospectus or amendments or supplements thereto, furnish to one counsel selected by holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which registration form documents shall be subject to the review, comment and approval of such counsel, and make all changes thereto as such counsel may request in writing to the extent such changes are required, in the reasonable judgment of the Company’s counsel, by the Securities Act;
(b) cause any such Registration Statement, Prospectus or amendments or supplements thereto, as of the effective date of such Registration Statement, Prospectus, amendment or supplement, (i) shall be selected by Splitco 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 to comply as to form in all material respects with the applicable requirements of the applicable registration form Securities Act and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Document, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject Commission promulgated thereunder and (ii) not to the reasonable review and reasonable comment of such counsel (including contain any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits omit to state a material fact required to be stated therein (in the case of a Registration Statement, Prospectus, amendment or supplement) or necessary to make any statement therein the statements therein, in light of the circumstances under which they were made, not misleading;
(ic) prepare and file with notify each selling holder of Registrable Securities, promptly after the SEC such amendmentsCompany receives notice thereof, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect time when such Registration Statement has been declared effective or a supplement to the sale or other disposition any Prospectus forming a part of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease Registration Statement has been filed;
(d) furnish to be Registrable Securities; and (ii) provide notice to such sellers each selling holder of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of the Prospectus included in such registration statement, Registration Statement (including each amendment preliminary Prospectus) and any supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus exhibits and any summary prospectusdocuments incorporated by reference therein) and any such other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, documents as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)seller;
(de) use its reasonable best efforts to register or qualify the such Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall selling holder reasonably request in writing, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders to consummate the disposition in such jurisdictions of the Registrable Securities in owned by such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)holders; provided, except that in no event the Company shall Splitco not be required to qualify generally to do business as a foreign corporation in any jurisdiction where it would notbusiness, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to general taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionjurisdiction where it would not otherwise be required to do so but for this Section 6(e);
(ef) promptly notify each Participating Holder and each managing underwriterselling holder of such Registrable Securities, if at any andtime when a Prospectus relating thereto is required to be delivered under the Securities Act, if requested by any such Person, confirm such notice in writing: (i) when of the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) happening of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact event as a result of which Splitco becomes aware which results the Prospectus included in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing Registration Statement contains an untrue statement of a material fact or omitting to state a material omits any fact required to be stated therein or necessary to make any statement the statements 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, if at the notification relates request of any such holder, the Company shall prepare a supplement or amendment to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(fg) comply in connection with an underwritten offering, make available for inspection by any selling holder of Registrable Securities, the underwriters participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and continue to comply) with all applicable rules other records, pertinent corporate documents and regulations properties of the SEC Company (includingcollectively, 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“Records”), and make generally available cause the Company’s officers, directors and employees to its security holders, as soon as supply all information reasonably practicable after the effective date of the registration statement (and requested by any such Inspector in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of connection with such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistration Statement;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ih) provide and cause to be maintained a transfer agent and registrar (which may be the same entity) for all such Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securitiesregistration;
(i) use its reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(j) in connection with an underwritten offering, enter into such customary agreements (including, if applicable, an including underwriting agreementand lock-up agreements in customary form) and take all such other customary actions as the Participating Holders holders of such Registrable Securities or the underwriters shall managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that including, without limitation, making appropriate officers of the Holders Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwritersSecurities);
(jk) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its stockholders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act; and
(l) in connection with an underwritten offering, furnish to each selling holder of Registrable Securities and each underwriter with (i) to obtain an a legal opinion from Splitcoof the Company’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementoutside counsel, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to dated the date of such financial statements) delivered the closing under the underwriting agreement, in form and substance as is customarily given in opinions of the Company’s counsel to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, ; and (ii) furnish a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterunderwriters in underwritten public offerings;
(km) deliver notify the holders of Registrable Securities promptly to counsel of any request by the Commission for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel amending or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt supplementing of such confidentiality agreements as Splitco may reasonably request, make reasonably available Registration Statement or Prospectus or 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statementadditional information;
(ln) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any stop order suspending or to obtain its withdrawal at the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;earliest possible moment if such stop order should be issued; and
(mo) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) otherwise use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and take all other marketing efforts and otherwise provide reasonable assistance steps necessary to effect the underwriters (taking into account the needs registration of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of such 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regcontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Key Energy Services Inc), Registration Rights Agreement (MHR Fund Management LLC)
Registration Procedures. If In connection with the obligations of the Company with respect to the Registration Statements pursuant to Sections 2(a) and whenever Splitco is required by 2(b) hereof, the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possibleto:
(a) prepare and file with the SEC Commission a registration statement Registration Statement or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant time period specified in Section 2 hereof on an the appropriate registration form of under the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofAct, which registration form (i) shall be selected by Splitco and the Company, (ii) shall, in the case of a shelf registrationShelf Registration, be available for the sale of the Registrable Securities Notes by the selling Holders thereof and, in the case of an Exchange Offer, be available for the exchange of Registrable Notes and such registration statement (iii) shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC Commission to be filed therewith, and Splitco shall ; use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective and usable for resales in accordance with Section 2 hereof and to promptly notify Holders of such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (effectiveness; provided, however, that as far if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus contained in advance as reasonably practicable an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes, before filing an Offering Documentany Registration Statement or Prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco will the Company shall furnish to one counsel for and afford the Holders participating in of the planned offering (selected Registrable Notes and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, a reasonable opportunity (which shall be at least four Business Days) to review copies of reasonably complete drafts of all such documents proposed (including copies of any documents to be filed (including all exhibits thereto and each document incorporated by reference therein and all exhibits thereto) proposed to the extent then required by the rules be filed; and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and shall not file any Offering Document to Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Participating Holders must be afforded an opportunity to review prior to the filing of such document if the Majority Holders or such Participating Broker-Dealer, as the case may be, their counsel or the managing underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, object in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingtimely manner;
(ib) prepare and file with the SEC Commission such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith each Registration Statement as may be necessary to keep such registration statement continuously Registration Statement effective for such period the Effectiveness Period or the Applicable Period, as the case may be and cause each Prospectus to be supplemented, if so determined by the Company or requested by the Commission, by any Participating Holder required prospectus supplement and as so supplemented to be filed pursuant to such registration statement shall request Rule 424 (or any similar provision then in force) under the Securities Act, and deliver copies thereof to the Holders promptly after its preparation and filing with the Commission; and comply with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the sale or other disposition of all Registrable Securities securities covered by such registration statement each Registration Statement during the Effectiveness Period or the Applicable Period, as the case may be, in accordance with the intended method or methods of disposition distribution by the seller or sellers selling Holders thereof set forth described in such registration statement; provided, however, that Splitco may discontinue this Agreement (including sales by any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a postParticipating Broker-effective amendment to a registration statement would be appropriateDealer);
(c) furnishin the case of a Shelf Registration, (i) notify each Holder of Registrable Notes included in the Shelf Registration Statement, at least three Business Days prior to filing, that a Shelf Registration Statement with respect to the Registrable Notes is being filed and advising such Holder that the distribution of Registrable Notes will be made in accordance with the method selected by the Majority Holders; (ii) furnish to each Holder of Registrable Notes included in the Shelf Registration Statement and to each underwriter of an underwritten offering of Registrable Notes, if any, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of as many copies of such registration statementeach Prospectus, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus Prospectus, and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereundersupplement thereto, and such other documents, documents as such seller and Holder or underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Notes; and (Splitco hereby consenting iii) consent to the use in accordance with all applicable laws of each such Offering Document the Prospectus or any amendment or supplement thereto by each such Participating Holder and of the underwriters, if any, selling Holders of Registrable Notes included in the Shelf Registration Statement in connection with the offering and sale of the Registrable Securities Notes covered by such registration statement the Prospectus or prospectus)any amendment or supplement thereto;
(d) use its reasonable best efforts to in the case of a Shelf Registration, register or qualify the Registrable Securities covered by such registration statement Notes or Exchange Notes under such other all applicable state securities or state “"blue sky” " laws of such jurisdictions by the time the applicable Registration Statement is declared effective by the Commission as any sellers Holder of Registrable Securities Notes or any managing underwriter, if any, Exchange Notes covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Notes shall reasonably request in writingwriting in advance of such date of effectiveness, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriterHolder and, if anyapplicable, underwriter to consummate the disposition in each such jurisdiction of such Registrable Notes or Exchange Notes owned by such Holder; provided, however, that the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event Company shall Splitco not be required to (i) qualify to do business as a foreign corporation or as a dealer in securities in any jurisdiction where it would not, but for the requirements of this paragraph (d), not otherwise be required to qualify but for this Section 3(d), (ii) file any general consent to service of process in any jurisdiction where it would not otherwise be so qualified, subject to such service of process or (iii) subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionif it is not then so subject;
(e1) in the case of a Shelf Registration or (2) if Participating Broker-Dealers from whom the Company has received prior written notice that they will be utilizing the Prospectus contained in the Exchange Offer Registration Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Notes and are required to deliver Prospectuses, promptly notify each Holder of Registrable Notes, or such Participating Holder Broker-Dealers, as the case may be, their counsel and each the managing underwriterunderwriters, if any andany, if requested by any such Person, and promptly confirm such notice in writing: writing (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same a Registration Statement has become effective and when any post-effective amendments thereto become effective; , (ii) of any comment letter or request by the SEC Commission or any state securities authority for amendments or and supplements to the registration statement a Registration Statement or the prospectus related thereto Prospectus or for additional information; information after the Registration Statement has become effective, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the registration statement qualification of the Registrable Notes or the Exchange Notes to be offered or sold by any Participating Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or the initiation of any proceedings for that purpose; , (iv) in the case of a Shelf Registration, if, between the receipt by Splitco effective date of a Registration Statement and the closing of any notification with respect to the suspension sale of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time Notes covered thereby, the representations and warranties contemplated by of the Company contained in any underwriting purchase agreement, securities sale agreement, sales agreement or other similar agreement, relating to the offering shall agreement cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v)) of the happening of any event or the failure of any event to occur or the discovery of any facts, unless Splitco has declared during the Effectiveness Period or the Applicable Period, which makes any statement made in such Registration Statement or the related Prospectus untrue in any material respect or which causes such Registration Statement or Prospectus to 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, and (vi) of the reasonable determination of the Company that a Postponement Period existspost-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, Splitco shall promptly prepare and furnish to each Holder of Registrable Notes included within the coverage of such seller Shelf Registration Statement, without charge, at least one conformed copy of each Registration Statement relating to such Shelf Registration and each underwriterany post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, if any, a reasonable number of copies unless requested);
(h) in the case of a prospectus supplemented Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends and in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders or amended the underwriters may reasonably request at least two Business Days prior to the closing of any sale of Registrable Notes pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration, promptly after the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesNotes or Exchange Notes, as the case may be, such prospectus shall Prospectus will not include an 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 the light of the circumstances under which they were made made, not misleading; and to notify each Holder to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iiij) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if anyShelf Registration, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly time prior to the filing of any document which is to be incorporated by reference into the registration statement a Registration Statement or the prospectus (a Prospectus after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectusa Registration Statement, provide a reasonable number of copies of such document to the Holders; and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Notes or the Initial Purchasers on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes or Registrable Notes, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with certificates for the Exchange Notes or the Registrable Notes, as the case may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the TIA, in connection with the registration of the Exchange Notes or Registrable Notes, as the case may be, and effect such changes to such documents as may be required for them to be so qualified in accordance with the terms of the TIA and execute, and 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 Commission to enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements (including underwriting agreements) as are customary in underwritten offerings and take all such other appropriate actions in connection therewith as are reasonably requested by the Holders of at least 25% in aggregate principal amount of the Registrable Notes in order to expedite or facilitate the registration or the disposition or the Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, if requested by (x) the Initial Purchasers, in the case where the Initial Purchasers hold Notes acquired by them as part of their initial placement or (y) Holders of at least 25% in aggregate principal amount of the Registrable Notes covered thereby: (i) make such representations and warranties to Holders of such Registrable Notes and the underwriters (if any), with respect to the business of the Company and the subsidiaries of the Company as then conducted and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain opinions of counsel for to the Company and updates thereof (which may be in the form of a reliance letter) in form and substance reasonably satisfactory to the managing underwriters (if any) and the Holders of a majority in aggregate principal amount of the Registrable Notes being sold, addressed to each Participating selling Holder and the underwriters (if any) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters (if any) from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by such underwriters in accordance with Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 4 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriterunderwriters) customary for such agreements with respect to all parties to be indemnified pursuant to said Section (including, without limitation, such underwriters and selling Holders); and in the case of an underwritten registration, the above requirements shall be satisfied at each closing under the related underwriting agreement or as and to the extent required thereunder;
(o) if (l) a Shelf Registration is filed pursuant to Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make reasonably available for inspection by any selling Holder of Registrable Notes or Participating Broker-Dealer, as applicable, who certifies to the Company that it has a current intention to sell such Registrable Notes or Exchange Notes, any underwriter participating in any such disposition of Registrable Notes, if any, and make any attorney, accountant or other agent retained by any such selling Holder, Participating Broker-Dealer, as the representatives case may be, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during the Company's normal business hours, all financial and other records, pertinent corporate documents and properties of Splitcothe Company and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any Subsidiaryapplicable due diligence responsibilities, andand cause the officers, directors and employees of the Company and its subsidiaries to supply all relevant information in each case, any successor thereto, case 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regrequested
Appears in 2 contracts
Sources: Registration Rights Agreement (Fiserv Inc), Registration Rights Agreement (Fiserv Inc)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registered Securities pursuant thereto as provided in this Agreement (or use best efforts or reasonable best efforts including any sale referred to accomplish the samein any Take-Down Notice), Splitco shallthe Company shall as promptly as reasonably practicable, as expeditiously as possiblesubject to the other provisions of this Agreement:
(ai) subject to the provisions of Section 5.01(a), use reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Article V; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch registration statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice (but excluding amendments and supplements that do nothing more than name Selling Holders (as defined below) and provide information with respect thereto), Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereofsuch underwriter(s), and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letters from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the underwriterslead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the context of a registered underwritten offering) of the Company, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors, provided that the same is not disruptive to the business of the Company; provided that such persons shall reasonably object, provided, that, notwithstanding the foregoing, first agree in no event shall Splitco be required to file any document writing with the SEC which in Company that any information that is reasonably designated by the view Company as confidential at the time of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits delivery shall be kept confidential by such persons subject to state a material fact required to be stated therein or necessary to make any statement therein not misleadingcustomary exceptions;
(iii) subject to Section 5.02, prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Article V;
(iii) if requested by the lead managing underwriter(s), promptly include in a prospectus supplement such registration statement shall information as the lead managing underwriter(s), if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5.03(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus supplement) and any summary prospectuseach 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, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting v) if such Registrable Securities are Class A Shares, use reasonable efforts to cause such Class A Shares to be listed on NASDAQ (or if the Class A Shares are no longer listed on NASDAQ, on such other national securities exchange on which the Class A Shares may then be listed), provided that, notwithstanding any other provision of this Agreement, the Company shall not be required to seek or obtain any shareholder approval in order to satisfy any stock exchange requirements in connection with such listing;
(vi) use reasonable efforts to provide and cause to be maintained a transfer agent and registrar (which 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;
(vii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement or any Free Writing Prospectus utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional informationprospectus; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect, if or that requires the notification relates to an event described making of any changes in clause (v)such registration statement, unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (includingprovided, in the case of clause (F), that such “cold comfort” letter, events subsequent to notice need not include the date of nature or details concerning such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterevent;
(kviii) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) 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, in each case, as promptly as reasonably practicable;
(mix) provide a CUSIP number for all cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(x) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the 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;
(nxi) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legends upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offering;under the Registration Statement; and
(oxii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the filing Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions, including a 10b-5 letter, and auditor “comfort” letters, and shall furnish to the Purchaser upon its request such documents.
(b) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution and delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees that upon receipt of any document which notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 5.03(a)(vii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 2 contracts
Sources: Securities Purchase Agreement (MDC Partners Inc), Securities Purchase Agreement (MDC Partners Inc)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of and/or participate in any offering or sale of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or commercially reasonable best efforts to accomplish the same), Splitco the Company shall, as expeditiously as reasonably possible:
(a) prepare and file all filings with the SEC and FINRA required for the consummation of the offering, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofthereof (including, without limitation, a Partner Distribution), which registration form (i) shall be selected by Splitco the Company (except as provided for in a Demand Registration Request) and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its commercially reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, reasonably request (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto (other than any amendment by means of a document filed by the Company under the Exchange Act) or any free writing prospectus related thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco the Company will furnish to one the Demand Parties, counsel for the Holders participating in the planned offering (selected by each of the Participating Holders) Holders and to one counsel for the Manager, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco the Company shall make the changes reasonably requested by such counsel and shall not file any Offering Document registration statement or amendment thereto (other than any amendment by means of a document filed by the Company under the Exchange Act), any prospectus or supplement thereto or any free writing prospectus related thereto to which counsel for the Participating Holders, the Majority Participating Holders or the underwriters, if any, shall reasonably object); provided, providedhowever, that, notwithstanding the foregoing, in no event shall Splitco the Company be required to file any document with the SEC which that in the view of Splitco the Company or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading; provided, further, that any Participating Holder shall be entitled to review and provide reasonable comment on disclosure regarding itself included or proposed to be included in any such filing;
(i) subject to Section 2.1(b), prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall reasonably request and to comply in all material respects with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement statement, and any prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act, in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitcothe Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco the Company hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its commercially reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions in accordance with the intended methods of disposition (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any other Offering Document free writing prospectus has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco the Company becomes aware which that results in the Offering Document registration statement or any amendment thereto, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein (other than with respect to a registration statement, in the light of the circumstances under which they were made) not misleadingmisleading (which notice shall notify the Participating Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information); 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 respectscorrect; and, if the notification relates to an event described in clause (v), unless Splitco the Company has declared that a Postponement Period exists, Splitco the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) in all material respects with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitcothe Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange;
(h) in connection with any underwritten offering, or cause its senior management, other employees and independent public accountants (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within in the meaning of Rule 11Aa2-1 case of the Exchange Act orindependent public accountants, failing thatsubject to any applicable accounting guidance regarding their participation in the offering or the due diligence process) and other experts to participate in, secure Nasdaq National Market authorization for make themselves available at reasonable times upon reasonable request, supply such shares and, without limiting information as may reasonably be requested and to otherwise facilitate and cooperate with the generality preparation of the foregoingregistration statement and prospectus and any amendments or supplements thereto (including participating in meetings, take all actions that may be required by Splitco as drafting sessions and due diligence sessions) taking into account the issuer of such Registrable Securities in order to facilitate the managing underwriterCompany’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsreasonable business needs;
(i) in connection with any underwritten offering, use its commercially reasonable efforts to make available at reasonable times upon reasonable request its senior management and other employees for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the Company’s reasonable business needs and the requirements of the marketing process) in the marketing of Registrable Securities;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to releasestatement and, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(ik) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Initiating Holder or 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 that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwritersagreement);
(jl) in connection with any underwritten offering, use its commercially reasonable best efforts (i) to obtain an opinion opinions from Splitcothe Company’s counsel counsel, including local counsel, and a “cold comfort” letter and letter, updates thereof and consents from the independent public accountants who have certified Splitco’s the financial statements of the Company (and/or any other financial statements) included or incorporated by reference in such the applicable registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion opinions and letter letters shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) to obtain customary letters from the Company’s reserve valuation experts addressed to the underwriters and (iii) to furnish to each Participating Holder upon its request and to each underwriter, if any, a copy copies of such opinion opinions and letter letters addressed to such underwriter;
(km) deliver promptly to each Demand Party, to counsel for each of the Participating Holder Holders and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe Company, its counsel or auditors and all memoranda independent public accountants relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as Splitco the Company may reasonably request, make reasonably available for inspection by counsel for each the Participating HolderHolders, by counsel for 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 the Participating Holder Holders or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), Company as shall may reasonably be reasonably necessary to enable them to exercise their due diligence responsibilityrequested, and to use reasonable best efforts to cause applicable personnel the Company’s officers and representatives of Splitco to meet with the Inspectors (if so requested) and other employees to supply the all information reasonably requested by any such Inspector counsel for the Participating Holders, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement;
(ln) use its commercially reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(mo) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statementstatement and, if applicable, 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;
(np) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to cooperate with the underwriters (taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, Participating Holders 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), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, to facilitate the timely preparation and make delivery of certificates (or book-entry designations) not bearing any restrictive legends representing the representatives of SplitcoRegistrable Securities to be sold, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion of and cause such document and make such changes Registrable Securities to be issued in such document concerning the Participating Holders prior to the filing thereof as counsel for denominations and registered in such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, names in no event shall Splitco be required to file any document accordance with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, underwriting agreement at least one conformed copy (1) Business Day prior to any sale of Registrable Securities to the registration statement and any post-effective amendments or supplements theretounderwriters or, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such regif not an underwritten offering,
Appears in 2 contracts
Sources: Registration Rights Agreement (Covia Holdings Corp), Agreement and Plan of Merger (Fairmount Santrol Holdings Inc.)
Registration Procedures. If and whenever Splitco is required by Whenever the Holders request that any Registrable Securities be registered pursuant to Section 2.1 or Section 2.2, subject to the provisions of this Agreement those Sections, the Company will use its commercially reasonable efforts to effect or cause the registration and the offer and sale of any such Registrable Securities under in accordance with the Securities Act intended method of disposition thereof as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same)soon as reasonably practicable, Splitco and shall, as expeditiously as possiblein connection with any such request, other than during any Postponement Period, use commercially reasonable efforts to:
(a) prepare and file with the SEC a registration statement Registration Statement 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 Splitco 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 Registration Statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco the Company shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement the Holders shall request, and no less than 180 one hundred eighty (180) days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any Free Writing Prospectus related thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any reasonable objections to any information pertaining to any Participating Holder the Holders and its their plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Holders prior to the filing thereof as counsel for the Holders or underwriters may reasonably request, and the Company shall make consider in good faith the changes reasonably and timely requested by such counsel and shall not file any Offering Document Registration Statement or amendment thereto, any Prospectus or supplement thereto or any Free Writing Prospectus related thereto to which the Participating Holders or the underwriters, if any, shall reasonably and timely object, ); provided, that, that notwithstanding the foregoing, in no event shall Splitco the Company be required to file any document with the SEC which that, in the reasonable view of Splitco the Company or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or counsel, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(b) (i) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously Registration Statement effective for such the period as any Participating Holder pursuant to such registration statement shall request specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement Registration Statement and any Prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act in accordance with the Holders’ intended methods method of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; Registration Statement for such period and (ii) provide reasonable notice to such sellers of Registrable Securities the Holders and the Managermanaging underwriter(s), if any, of Splitco’s reasonable determination to the extent that the Company determines that a post-effective amendment to a registration statement Registration Statement would be appropriate;
(c) furnish, without charge, to each Participating Holder the Holders and each underwriter, if any, of the securities covered by such registration statement Registrable Securities such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities ActProspectus, each free writing prospectus Free Writing Prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and other documents, as such seller the Holders and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller the Holders (Splitco the Company hereby consenting to the use in accordance with all applicable laws Laws of each such Offering Document by Registration Statement (or amendment or post-effective amendment thereto) and each such Participating Holder Prospectus or Free Writing Prospectus by the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Registration Statement or prospectusProspectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement Registration Statement under such other the securities or state “blue sky” laws Laws of such jurisdictions as any sellers the Holders or, in the case of Registrable Securities or any a Public Offering, the managing underwriter, if any, underwriter reasonably shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, the Holders to consummate the disposition in such jurisdictions of the Registrable Securities in beneficially owned by them; provided, that the Company shall not for any such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco purpose be required to qualify generally to do transact business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be is not so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder the Holders and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writingany: (i) when the registration statement Registration Statement, any pre-effective amendment, the Prospectus or any other Offering Document Prospectus supplement related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Offering DocumentRegistration Statement or any post-effective amendment, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement Registration Statement or the prospectus Prospectus related thereto or for additional information, including copies of any and all transmittal letters and other correspondence with the SEC and all correspondence (including comment letters and a copy of the Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by reference therein); (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that purpose; or (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws Laws of any jurisdiction or the initiation of any proceeding for such purpose; ;
(v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vif) if at any time (i) any event or development shall occur or condition shall exist as a result of which 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so thatDisclosure Package, as thereafter delivered to the purchasers of such Registrable Securitiesthen amended or supplemented, such prospectus shall not would include an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made existing when the Disclosure Package is delivered to a purchaser, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company will promptly notify the Holders and each managing underwriter, if any, and promptly prepare and file with the SEC (to the extent required) and furnish to the Holders and each underwriter, if any, such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package, as so amended or supplemented, will not, in the light of the circumstances existing when the Disclosure Package is delivered to a purchaser, be misleading, or so that the Disclosure Package will comply with Law;
(fg) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitcothe Company’s first full calendar quarter after the effective date of the registration statementa Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder158;
(g) (i) cause all such list the Registrable Securities covered by such registration statement to be listed Registration Statement on the principal Nasdaq or any other national securities exchange on which similar securities issued selected by Splitco are then listed (if any)the Company, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or exchange and (ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitcothe Company, including without limitation all corporate governance requirements;
(i) cause its officers, employees and registered independent public accounting firm (in the case of the registered independent public accounting firm, subject to any applicable accounting guidance regarding their participation in the offering or the due diligence process) to participate at reasonable times and for reasonable periods in, make themselves reasonably available, supply such information as may reasonably be requested and to otherwise facilitate and cooperate with, the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto, taking into account the Company’s reasonable business needs;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement not later than the applicable effective date of such registration statement; (ii) instruct such transfer agent (A) to releaseRegistration Statement and, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(k) if the offering is underwritten pursuant to a Demand Registration Request, then at the request of the Holders, (i) enter into such customary agreements (including, if applicable, an including underwriting agreementagreements in customary form) and take all such other customary actions as the 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 a party to any such underwriting agreement agreement), (ii) have members of its management participate in due diligence sessions and, in the case of marketed offerings, support the marketing of the Registrable Securities covered by the registration (including, without limitation, participation in investor calls and may“road shows”), at their option, require that Splitco make and (iii) furnish to the underwriters a customary legal opinion and for disclosure letter from counsel to the benefit of such Holders Company and customary comfort letters from the representations, warranties registered independent public accounting firm retained (and covenants of Splitco which are being made brought down to and for the benefit of such underwritersclosing under the underwriting agreement);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitcothe Company’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitcothe Company’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offeringsPublic Offerings, which opinion and letter shall be dated as of the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, underwriters and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, underwriter a copy of such opinion and letter addressed to such underwriter;
(km) deliver promptly to counsel for each Participating Holder the Holders and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitcothe Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statementRegistration Statement, and, upon receipt of such confidentiality agreements as Splitco may reasonably request, make reasonably available for inspection by counsel for each Participating Holderthe Holders, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement Registration Statement and by any attorney, accountant or other agent retained by any Participating Holder the Holders or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and to use reasonable best efforts to cause applicable personnel all of the Company’s officers, directors and representatives of Splitco to meet with the Inspectors (if so requested) and employees to supply the all information reasonably requested by any such Inspector counsel for the Holders, counsel for an underwriter, accountant or agent in connection with such registration statementRegistration Statement;
(ln) in connection with the preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, include in such documents any comments reasonably and timely made by the Holders or their legal counsel; participate in, and make documents available for, the reasonable and customary due diligence review of underwriters during normal business hours, on reasonable advance notice and without undue burden or hardship on the Company;
(o) use its commercially reasonable best efforts to prevent the issuance or obtain the withdrawal of any stop order suspending the or other suspension of effectiveness of the registration statementa Registration Statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdictionjurisdiction and, in each caseif such an order or suspension is issued, as to use its commercially reasonable efforts to promptly as reasonably practicableobtain the withdrawal of such order or suspension and to notify the Holders of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose;
(mp) provide a CUSIP number for all Registrable Securitiescomply with the Securities Act, not later than the effective date Exchange Act and any other applicable rules and regulations of the registration statementSEC and reasonably cooperate with the Holders in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Shares to be sold from time to time as permitted by Law;
(nq) use its reasonable best efforts to make available its employees and personnel for participation ensure that any Free Writing Prospectus utilized in “road shows” and other marketing efforts and otherwise provide reasonable assistance connection with any registration covered by Section 2.1 or Section 2.2 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the underwriters (taking into account extent required thereby, is retained in accordance with the needs of Securities Act to the businesses of Splitcoextent required thereby, any Subsidiarywill not conflict with a related Prospectus, Prospectus supplement and related documents and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document when taken together with the SEC which in the view of Splitco or its counsel contains an related Prospectus, Prospectus supplement and related documents, will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make any statement therein the statements therein, in the light of the circumstances under which they were made, not misleading);
(pr) furnish to counsel for each Participating Holder upon its request and to each cooperate with the managing underwriterunderwriters, without charge, upon request, at least one conformed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by referenceif any, the prospectus contained Holders and their respective counsel in such regconnection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, Nasdaq or any other national securities exchange on which the Shares are listed;
(s) pay the applicable Expenses;
(t) cooperate with the Holders and the man
Appears in 2 contracts
Sources: Registration Rights Agreement (Loyalty Ventures Inc.), Registration Rights Agreement (Alliance Data Systems Corp)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or Section 4, the Company shall use best efforts or its reasonable best efforts to accomplish effect such registration to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, Splitco shalland pursuant thereto the Company shall cooperate in the sale of the securities and shall use its reasonable best efforts, as expeditiously as possiblepossible to the extent applicable, to:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company’s counsel, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingapplicable law;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(cf) furnish, without charge, furnish or make available to each Participating Holder selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement holder, counsel or underwriter); provided that the Company may furnish or make available any such number documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(dh) use its reasonable best efforts prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions jurisdiction; provided, however, that the Company will not be required to (including keeping such registration or qualification i) qualify generally to do business in effect for so long as such registration statement remains in effect), except that in no event shall Splitco any jurisdiction where would not otherwise be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph Agreement or (d), be required to be so qualified, to ii) take any action that would subject itself to taxation in any such jurisdiction or to consent it to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ei) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivj) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement;
(iim) instruct cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to release, be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such effective dateexchange, any stop transfer order with respect as the case may be, prior to the certificates with respect to effectiveness of such Registration Statement;
(n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jo) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and in connection with a “cold comfort” letter and updates thereof from customary due diligence review, make available for inspection by a representative of the independent public accountants who have certified Splitco’s financial statements (and/or selling holders of Registrable Securities, any other financial statements) included or incorporated by reference underwriter participating in any such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case disposition of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwritersRegistrable Securities, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its any 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such selling holders or any such underwriter, underwriter (collectively, the “InspectorsOffering Persons”), at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company and its subsidiaries, as shall be reasonably necessary and cause the officers, directors and employees of the Company and its subsidiaries to enable them to exercise their supply all information and participate in customary due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information sessions in each case reasonably requested by any such Inspector representative, underwriter, counsel or accountant in connection with such registration statement;
Registration Statement, provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (li) use its disclosure of such information is required by court or administrative order or in connection with an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness judgment of the registration statementOffering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the lifting Company. In the case of any suspension a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
proposed disclosure prior to such disclosure (m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) except in the marketing case of Registrable Securities in any underwritten offering;
(oii) promptly prior to the filing of any document which above when a proposed disclosure was or is to be incorporated by reference into the registration statement made in connection with a Registration Statement or the prospectus (after the initial filing of such registration statement), Prospectus under this Agreement and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which except in the view case of Splitco clause (i) above when a proposed disclosure is in connection with a routine audit or its counsel contains an untrue statement of examination by, or a material fact blanket document request from, a regulatory or omits to state a material fact required to be stated therein self-regulatory authority, bank examiner or necessary to make any statement therein not misleadingauditor);; and
(p) furnish to counsel for cooperate with each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed copy seller 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 regRegistrable S
Appears in 2 contracts
Sources: Registration Rights Agreement (Crocs, Inc.), Investment Agreement (Crocs, Inc.)
Registration Procedures. If and whenever Splitco is required by (a) In connection with the provisions Company’s Registration obligations under Section 2.01 of this Agreement to effect or cause Exhibit, the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or Company shall use best efforts or its reasonable best efforts to accomplish effect such Registration to permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereofdistribution thereof as promptly as reasonably practicable, which registration form and in connection therewith the Company shall, subject to Section 2.03 of this Exhibit:
(i) shall be selected by Splitco Prepare 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 file with the requirements of the applicable registration SEC a Registration Statement or Registration Statements on Form S-3 or successor form and include all financial statements required by the SEC to be filed therewiththereto, and Splitco shall use its reasonable best efforts to cause such registration statement Shelf Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Shelf Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Designee, Splitco will furnish to one the Initial Holder, its counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter or underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such the Designee, the Initial Holder, its counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing managing underwriter or maintain the effectiveness thereof)underwriters, and Splitco shall make the changes such other documents reasonably requested by such the Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, including any comment letters from the SEC, and, if requested by the Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, provide the Designee, the Initial Holder, its counsel and the managing underwriter or underwriters reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Shelf Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any Registration pursuant to Section 2.01 of this Exhibit to which the Participating Holders Designee, the Initial Holder, its counsel, or the underwritersunderwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the reasonable opinion of the Company, such filing is necessary to comply with applicable law;
(ii) prepare and file any document with the SEC which in such pre- and post-effective amendments to such Shelf Registration Statement, supplements or amendments to the view Prospectus as may be (A) reasonably requested by the Designee or (B) necessary to keep such Registration effective for the period of Splitco or its counsel does not time required by this Exhibit, and comply with the requirements provisions of the Securities Act applicable securities laws with respect to the sale or other disposition of all securities covered by such Shelf Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Shelf Registration Statement;
(iii) notify the Designee and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the rules relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (a) when the applicable Shelf Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus, and any amendment or supplement to such Prospectus has been filed, (b) of regulations thereunder any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Shelf Registration Statement, such Prospectus, or for additional information, (c) of the issuance by the SEC of any stop order suspending the effectiveness of such Shelf Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, and (d) with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(iv) promptly notify the Designee and the underwriter(s), if any, when the Company becomes aware of the happening of (A) the representations and warranties of the Company in any applicable underwriting agreement ceasing to be true and correct in all material respects and (B) any event as a result of which the applicable Shelf Registration Statement or Prospectus (as then in effect) contains an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of such Prospectus or any statement therein preliminary Prospectus, in light of the circumstances under which they were made) not misleading;
(i) , or, if for any other reason it shall be necessary to amend or supplement such Shelf Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC SEC, and furnish without charge to the Designee and the managing underwriter or underwriters, if any, an amendment or supplement to such amendmentsShelf Registration Statement or Prospectus which shall correct such misstatement or omission or effect such compliance;
(v) use its reasonable best efforts to prevent, or obtain the withdrawal of as promptly as possible, any stop order or other order or notice preventing or suspending the use of any preliminary or final Prospectus;
(vi) promptly incorporate in a Prospectus supplement or post-effective amendments amendment such information as the managing underwriter or underwriters and supplements (including, without limitation, any reports required to the Designee agree should be filed pursuant included therein relating to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions plan of the Securities Act distribution with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to make all required filings of such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to a registration statement would be appropriateincorporated in such Prospectus supplement or post-effective amendment;
(cvii) furnishfurnish to the Designee, without charge, to each Participating the Initial Holder and each underwriter, if any, without charge, as many conformed copies as the Designee, the Initial Holder or underwriter may reasonably request of the securities covered applicable Shelf Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference), and such registration statement other documents, as the Designee, the Initial Holder or such number managing underwriter or underwriters may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering;
(viii) deliver to the Designee, the Initial Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectus and any summary prospectusProspectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereundersupplement thereto, and such other documentsdocuments as the Designee, as such seller and the Initial Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting the Initial Holder or underwriter, it being understood that the Company consents to the use in accordance with all applicable laws of each such Offering Document Prospectus or any amendment or supplement thereto by each such Participating the Designee, the Initial Holder and the underwritersunderwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus or prospectus)any amendment or supplement thereto;
(dix) on or prior to the date on which the applicable Shelf Registration Statement becomes effective, use its reasonable best efforts to register or qualify qualify, and cooperate with the Registrable Securities covered by such registration statement under such other securities Designee, the Initial Holder, the managing underwriter or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriterunderwriters, if any, shall and their respective counsel, in connection with the Registration or qualification (or exemption from such Registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as the Designee, the Initial Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing, writing and do any and all other acts and or things which may be reasonably necessary or advisable to keep such Registration or qualification in effect for such period as required by Section 2.01(b) of this Exhibit; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(x) cooperate with the Designee, the Initial Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such sellers Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriterunderwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriter(s);
(xi) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Designee, the Initial Holder or the underwriter(s), if any, to consummate the disposition of such Registrable Securities;
(xii) not later than the effective date of the applicable Shelf Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in such jurisdictions (including keeping such registration or qualification in effect a form eligible for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictiondeposit with The Depository Trust Company;
(exiii) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any make such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true Initial Holder and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriterunderwriters or agents, if any, a reasonable number of copies of a prospectus supplemented in form, substance and scope as are customarily made by Company in secondary underwritten public offerings;
(xiv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Designee, the Initial Holder or amended so thatthe managing underwriter or underwriters, as thereafter delivered if any, reasonably request in order to expedite or facilitate the purchasers Registration and disposition 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;
(fxv) obtain for delivery to the Designee, the Initial Holder and to the underwriter(s), if any, an opinion or opinions from counsel for the Company dated the effective date of the Shelf Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinion or opinions shall be reasonably satisfactory to the Initial Holder or underwriters, as the case may be, and their respective counsel;
(xvi) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Designee, the Initial Holder, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement; provided that if such cold comfort letters are not provided or such independent certified public accounts are not able to bring down such cold comfort letters to the closing under such underwriting agreement (other than during a Shelf Registration Suspension), then (A) no Takedown shall have been deemed to have occurred until and unless such cold comfort letter is provided and brought down to the closing under such underwriting agreement and (B) the Registration Period will be extended by the number of days equal to the number of days between the date on which any such cold comfort letter is requested to be issued or brought down and the date on which such cold comfort letter is eventually issued or brought down;
(xvii) use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), securities laws and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter)practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 the rules and regulations promulgated thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(ixviii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement the applicable Shelf Registration Statement from and after a date not later than the effective date of such registration statement; Shelf Registration Statement;
(iixix) instruct deliver such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the documents and certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations as may be reasonably requested by the sellers of Designee, the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offeringInitial Holder, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included managing underwriter 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to this Exhibit 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 Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterextent required thereunder);
(kxx) deliver promptly cause all Registrable Securities covered by the applicable Shelf Registration Statement to counsel be listed on each securities exchange on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted;
(xxi) make available upon reasonable notice at reasonable times and for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably request, make reasonably available reasonable periods for inspection by counsel for each Participating the Designee, the Initial Holder, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement Shelf Registration Statement and by any attorney, accountant or other agent retained by any Participating the Designee, the Initial Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”)Company, and cause all of the its officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Shelf Registration Statement as shall be reasonably necessary to enable them to exercise their due diligence responsibility; provided, that any such Person gaining access to information regarding the Company pursuant to this Section 2.02(a)(xxi) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that it determines in good faith to be confidential, and of which determination such Person is notified, unless (w) the release of such information is requested or required (by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (x) such information is or becomes publicly known other than through a breach of this or any other agreement of which such Person has knowledge, (y) such information is or becomes available to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with such Person on a non-confidential basis from a source other than the Inspectors Company or (if so requestedz) and to supply the such information reasonably requested is independently developed by any such Inspector in connection with such registration statementPerson;
(lxxii) take no action prohibited by Regulation M under the Exchange Act;
(xxiii) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of cause the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than covered by the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 applicable Shelf Registration Statement to be incorporated registered with or approved by reference into such other governmental agencies or authorities as may be necessary to enable the registration statement seller or sellers thereof or the prospectus (after the initial filing of such registration statement), and prior to the filing underwriter or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriterunderwriters, if any, and make to consummate the representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, reasonably available for discussion disposition 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading)Registrable Securities;
(pxxiv) furnish to counsel for each Participating Holder promptly after the issuance of an earnings release or upon its the request and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement and any postDesignee or Initial Holder, prepare a current report on Form 8-effective amendments K with respect to such earnings release or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such rega matter of disclosure as
Appears in 2 contracts
Sources: Transaction Framework Agreement (Delta Air Lines Inc /De/), Transaction Framework Agreement (Delta Air Lines Inc /De/)
Registration Procedures. If and whenever Splitco 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 this Agreement (Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare and file file, in each case as promptly as practicable, with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco 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 or by the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form distribution thereof, make all required filings with FINRA and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as practicable and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including any free writing prospectuses under Rule 433 under the Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders participating in of the planned offering (selected Registrable Securities covered by such Registration Statement, their counsel and the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Demand Party, the Holders of a majority of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable law;
(ib) subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such registration statement Registration Statement continuously effective for during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all the Registrable Securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement; providedRegistration Statement;
(c) notify each selling Holder, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities counsel and the Managermanaging underwriters, if any, of Splitco’s reasonable determination that 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 or any Free Writing Prospectus has been filed, and, with respect to a registration 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 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 Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would be appropriate;constitute material non-public information);
(cd) furnishuse its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, without charge, to each Participating Holder and each underwriteror 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 date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the securities covered by such registration statement such number of copies of such registration statement, each amendment then issued and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the outstanding Registrable Securities Act, each free writing prospectus utilized being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement or post-effective amendment such information as the managing underwriters, in all material respects in conformity with the requirements of the Securities Act if any, or of the rules such Demand Party or regulations thereunder, and other documentsHolders, as such seller and underwriter the case may be, may reasonably request in order to facilitate permit the public sale intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or other disposition such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto;
(dg) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) subject itself to taxation in any such jurisdiction or (iii) take any action that would subject it to general service of process in any such jurisdiction 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);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or underwriterthe managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the Registrable Securities in such jurisdictions (including keeping such registration intended method or qualification in effect for so long as such registration statement remains in effect)methods thereof, except that in no event shall Splitco as may be required to qualify to do business solely as a foreign corporation consequence of the nature of such selling Holder’s business, in any jurisdiction where it would not, but for which case the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation Company will cooperate in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed all reasonable respects with the SEC andfiling of such Registration Statement and the granting of such approvals, with respect as may be necessary to enable the Offering Document, when the same has become effective; (ii) of any comment letter seller or request by the SEC or state securities authority for amendments or supplements to the registration statement sellers thereof or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriterunderwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a reasonable number of copies of supplement or post-effective amendment to the Registration Statement or a prospectus supplemented supplement to the related Prospectus or amended any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;misleading;
(fk) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is use its reasonable best efforts to provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(il) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement (ii) instruct and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(Am) use its reasonable best efforts to releasecause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which the Common Stock is then listed, on such effective date, any stop transfer order with respect prior to the certificates with respect effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Holders of the such Registrable Securities which are 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 distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementtherein, in each case, in customary form form, substance and covering such matters scope as are customarily covered made by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered issuers to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestif true, 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 confirm the same if and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriterwhen requested, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(lii) use its reasonable best efforts to prevent furnish to the issuance or obtain selling Holders and the withdrawal underwriters, if any, opinions of any order suspending outside counsel to the effectiveness Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to each of the registration statementunderwriters, or if any, covering the lifting of any suspension of the qualification of any of the Registrable Securities for sale matters customarily covered in any jurisdictionopinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(niii) use its reasonable best efforts to make available its employees obtain “cold comfort” letters and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to updates thereof from the underwriters (taking into account the needs independent certified public accountants of the businesses of SplitcoCompany (and, if necessary, any Subsidiary, and, in each case, other independent certified public accountants of any successor thereto, and the requirements subsidiary of the marketing process) Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the marketing of Registrable Securities Registration Statement) who have certified the financial statements included 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)Registration Statement, and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and addressed to each managing underwriterselling Holder (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and make covering matters of the representatives of Splitcotype customarily covered in “cold comfort” letters in connection with underwritten offerings, any Subsidiary(iv) if an underwriting agreement is entered into, and, in each case, any successor thereto, reasonably available for discussion of such document the same shall contain indemnification provisions and make such changes in such document concerning the Participating Holders prior procedures substantially to the filing thereof as counsel for such Participating Holders or underwriters may reasonably request (provided, that, notwithstanding the foregoing, effect set forth in no event shall Splitco be required Section 5 hereof with respect to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required all parties to be stated therein or necessary indemnified pursuant to make any statement therein not misleading);
Section 5 except as otherwise agreed by the Holders and (pv) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 deliver such regdocumen
Appears in 2 contracts
Sources: Registration Rights Agreement (KAR Auction Services, Inc.), Investment Agreement (KAR Auction Services, Inc.)
Registration Procedures. If and whenever Splitco is required by the provisions of (a) In connection with each Registration Statement prepared pursuant to this Agreement Article IV pursuant to effect or cause the registration of any which Registrable Securities under will be offered and Sold, and in accordance with the intended method or methods of distribution of the Registrable Securities Act as provided described in this Agreement such Registration Statement, the Company shall:
(or i) use best efforts or its reasonable best efforts to accomplish to, as promptly as reasonably practicable (and within the sametime requirements set out in this Article IV), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement Registration Statement on an appropriate registration Registration form of the SEC for and thereafter use reasonable best efforts to cause such Registration Statement to become effective under the disposition of such Registrable Securities in accordance with Act promptly after the intended method of disposition filing thereof, which registration form (i) shall be selected by Splitco 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 Registration Statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC such form to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, ; provided that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco will the Company shall furnish to one or more legal counsel for the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Manager, if any, ▇▇▇▇▇▇ draft copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein at least ten Business Days prior to the extent then required by the rules and regulations of the SEC)such filing, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder ▇▇▇▇▇▇ and its plan of distribution agents and otherwise to Representatives and the extent necessaryunderwriters, if at all, to complete the filing or maintain the effectiveness thereof)any, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document amendment or supplement to a Takedown Prospectus Supplement or Demand Registration Statement to which the Participating Holders ▇▇▇▇▇▇ or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(iii) as promptly as reasonably practicable thereafter, furnish without charge to ▇▇▇▇▇▇ and the underwriters, if any, at least one conformed copy of the Registration Statement and each post-effective amendment or supplement thereto (including all schedules and exhibits but excluding all documents incorporated or deemed incorporated therein by reference, unless requested in writing by ▇▇▇▇▇▇ 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 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 as ▇▇▇▇▇▇ or the underwriters, if any, may reasonably request in order to facilitate the public Sale or other disposition of the Registrable Securities being Sold by ▇▇▇▇▇▇ (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 ▇▇▇▇▇▇ and the underwriters, if any, in connection with the offering and Sale of the Registrable Securities covered by such Registration Statement or Prospectus);
(iii) use its reasonable best efforts to keep such Registration Statement effective for the Effective Period, prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith Prospectus as may be necessary to keep such registration statement continuously effective maintain the effectiveness of the Registration for such period as the Effective Period and cause the Prospectus (and any Participating Holder pursuant amendments or supplements thereto) to such registration statement shall request and to comply be filed with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriateSEC;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(div) use its reasonable best efforts to register to, as promptly as reasonably practicable, Register or qualify the Registrable Securities covered by such registration statement Registration Statement under such other securities or state “blue sky” laws of such jurisdictions in the United States as any sellers of Registrable Securities are reasonably necessary, keep such Registrations or any managing underwriter, if any, shall reasonably request qualifications in writingeffect for so long as the Registration Statement remains in effect, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers ▇▇▇▇▇▇ or underwriter, if any, any underwriter to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions; provided, except however, that in no event shall Splitco the Company be required to (A) qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph subparagraph (div), be 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 consent to general service of process in any such jurisdictiondo so, but for this subparagraph (iv);
(ev) use its reasonable best efforts to, as promptly as reasonably practicable, cause all Registrable Securities covered by such Registration Statement, if any, to be listed (after notice of issuance) on the NYSE or on the principal securities exchange or interdealer quotation system on which the Common Stock is then listed or quoted;
(vi) use its reasonable best efforts to promptly notify each Participating Holder ▇▇▇▇▇▇ and each the managing underwriterunderwriter or underwriters, if any andany, if requested by any such Personafter becoming aware thereof, confirm such notice in writing: (iA) when the registration statement Registration Statement or any other Offering Document related Prospectus or any amendment or supplement thereto has been filed with the SEC filed, and, with respect to the Offering DocumentRegistration Statement or any post-effective amendment, when the same has become effective; , (iiB) of any comment letter or request by the SEC or any U.S. state securities authority for amendments or supplements to the registration statement Registration Statement or the prospectus related thereto Prospectus or for additional information; , (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that purpose; , (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or state “blue sky” laws of Sale in any jurisdiction or the initiation of any proceeding for such purpose; purpose or (vE) within the Effective Period of the happening of any event or the existence of any fact of which Splitco becomes aware which results makes any statement in the Offering Document Registration Statement or any post-effective amendment thereto, Prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any material respect or which requires the information conveyed to making of any purchaser at changes in the time of sale to such purchaser containing an Registration Statement or post-effective amendment thereto or any Prospectus or amendment or supplement thereto so that they will not contain any untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein 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 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 ▇▇▇▇▇▇ and the managing underwriters, if any, copies of all correspondence between the SEC and the Company, its legal counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the Registration Statement (viexcept to the extent such correspondence is currently available via ▇▇▇▇▇);
(ix) use its reasonable best efforts to permit ▇▇▇▇▇▇, the underwriters(s) and its and their respective Representatives to do such reasonable 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;
(x) 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;
(xi) use its reasonable best efforts to cooperate with ▇▇▇▇▇▇ and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates or book-entry shares representing the Registrable Securities to be Sold under the Registration Statement in a form eligible for deposit with The Depository Trust Company not bearing any restrictive legends (other than as required by The Depository Trust Company) 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 ▇▇▇▇▇▇, in each case at least two Business Days prior to any time Sale of Registrable Securities;
(xii) in the representations case of a firm commitment Underwritten Offering, use its reasonable best efforts to, as promptly as reasonably practicable, enter into an underwriting agreement customary in form and warranties substance (taking into account the Company’s prior underwriting agreements) for firm commitment underwritten secondary offerings of the nature contemplated by any underwriting agreementthe applicable Registration Statement;
(xiii) use its reasonable best efforts to, securities sale agreementas promptly as reasonably practicable, or other similar agreement, relating to obtain an opinion from the offering shall cease to be true Company’s outside and correct in all material respects; internal legal counsel and a “comfort” letter (and bring-down “comfort” letter) from the Company’s independent public accountants (and, if necessary, any other independent certified public accountants of any Subsidiary of the notification relates Company, any accounting predecessor or successor to the Company (including, for the avoidance of doubt, the SpinCo Business) or 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, “comfort” letters and bring-down “comfort” letters in connection with an event described in clause offering of the nature contemplated by the applicable Registration Statement;
(vxiv) use its reasonable best efforts to, as promptly as reasonably practicable, provide to legal counsel to ▇▇▇▇▇▇ 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), unless Splitco has declared copies of any such document;
(xv) cause its officers to fully cooperate 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 presentations (including “road-shows”), “one-on-one,” and other customary marketing activities in such locations (domestic and foreign) as recommended by the underwriter(s);
(xvi) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
(xvii) otherwise use its reasonable best efforts to comply with, and cause its officers to comply with, all applicable rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) (including by collecting and delivering any FINRA questionnaires requested by counsel to ▇▇▇▇▇▇), the SEC and NYSE (or any other applicable national securities exchange);
(xviii) use its reasonable best efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company; and
(xix) use its reasonable best efforts to take all other steps, at the written request of ▇▇▇▇▇▇, as may be necessary to effect the Registration, offering and Sale of the Registrable Securities as required hereby.
(b) In the event that a Postponement Period existsthe Company would be required, Splitco shall pursuant to Section 4.10(a)(vi)(E), to notify ▇▇▇▇▇▇ or the managing underwriter or underwriters, if any, of the happening of any event specified therein, the Company shall, subject to Section 4.03(c), as promptly as practicable, prepare and furnish to ▇▇▇▇▇▇ and to each such seller and each underwriter, if any, underwriter a reasonable number of copies of a prospectus Prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSecurities that have been Registered pursuant to this Agreement, such prospectus 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 the light of the circumstances under which they were made made, not misleading;
(f) comply (. ▇▇▇▇▇▇ agrees that, upon receipt of any notice from the Company pursuant to Section 4.10(a)(vi)(E), it shall, and continue 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 comply) with all applicable rules and regulations forthwith discontinue disposition of the SEC 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 (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)prior to such amendment or supplement) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, covering such Registrable Securities as soon as reasonably practicable after ▇▇▇▇▇▇’ receipt of such notice.
(c) The Company hereby agrees that if it shall previously have received a request pursuant to Section 4.01 or Section 4.02 for Registration of Registrable Securities in an Underwritten Offering, and if such previous Registration shall not have been withdrawn or abandoned, the Company, if requested by the managing underwriter for such Underwritten Offering, shall not Transfer to a third party or third parties any Common Stock, any other equity security of the Company or any security convertible into or exchangeable for any equity security of the Company until the earlier of (i) 90 days after the effective date of such Registration Statement and (ii) such time as all of the registration statement Registrable Securities covered by such Registration Statement have been distributed; provided, however, that notwithstanding the foregoing, the Company may Transfer Common Stock or such other securities (and in any event within forty-five (45A) days, or ninety (90) days if it is a fiscal year, after the end as part of such twelve month period described hereafter)Underwritten Offering, an earnings statement subject to Section 4.06, (which need B) pursuant to a Registration Statement on Form S-8 or Form S-4 under the Securities Act or any successor or similar form, (C) as part of a transaction under Rule 145 of the Securities Act, (D) in one or more private transactions that would not be audited) covering the period of at least twelve (12) consecutive months beginning interfere with the first day method of Splitco’s first calendar quarter after distribution contemplated by such Registration Statement or (E) if such Transfer was publicly announced or agreed to in writing by the effective Company prior to the date of the registration statementreceipt of such request pursuant to Section 4.01, which earnings statement but subject to Section 4.06 if applicable.
(d) ▇▇▇▇▇▇ shall satisfy furnish to the provisions Company in writing such information regarding Jacobs and its intended method of Section 11(a) distribution of the Registrable Securities as the Company may from time to time reasonably request in writing 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 Rule 158 the rules and regulations thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement , including any financial statements or other information of the SpinCo Business relating to any date or any period ending on or prior to the Merger Closing Date to the extent required to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementany Prospectus and not already in the possession of the Company. ▇▇▇▇▇▇ shall promptly notify the Company of any inaccuracy or change in information previously furnished by ▇▇▇▇▇▇ to the Company or of the occurrence of any event, in each case, in customary form and covering such matters either case as are customarily covered by such opinions and “cold comfort” letters (including, in the case a result of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda any Prospectus relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 contains or the prospectus (after the initial filing of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains would contain an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make any statement therein the statements therein, in light of the circumstances under which they were made, not misleading);
(p) , and promptly furnish to counsel for each Participating Holder upon its request the Company any additional information required to correct and update any previously furnished information or required so that such Prospectus shall not contain an untrue statement of a material fact or omit to each managing underwriter, without charge, upon request, at least one conformed 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 regstate a material fact required to be stated
Appears in 2 contracts
Sources: Registration Rights Agreement (Amentum Holdings, Inc.), Registration Rights Agreement (Amazon Holdco Inc.)
Registration Procedures. If In connection with the registration ----------------------- obligations of the Company pursuant to and whenever Splitco is required by in accordance with Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the provisions of this Agreement Company shall use commercially reasonable efforts to effect or cause such registration to permit the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, which registration form and pursuant thereto the Company shall as expeditiously as possible (ibut subject to Sections 2 and 3 hereof):
(a) shall be selected by Splitco and At least ten (ii10) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable business days before filing an Offering Documenta Registration Statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to any such filing, Splitco will furnish to one counsel for the Holders who are participating in such Registration Statement and the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel Holders and such underwriters (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereoftheir respective counsel), and Splitco shall make and, in the changes reasonably requested by such counsel and shall case of a Demand Registration, the Company will not file any Offering Document Registration Statement or amendment thereto or any prospectus or any supplement thereof to which the Participating Registering Holders or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to ;
(b) prepare and file any document with the SEC which in a Registration Statement for the view of Splitco or its counsel does not comply with the requirements sale of the Securities Act Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, subject to the rules of regulations thereunder Company's right to terminate or contains an untrue statement of abandon a material fact or omits registration pursuant to state a material fact required Section 3(c) hereof, use commercially reasonable efforts to be stated therein or necessary cause such Registration Statement to make any statement therein not misleadingbecome effective and remain effective as provided herein;
(ic) prepare and file with the SEC such amendments, amendments (including post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Actamendments) to such registration statement Registration Statement, and such supplements to the prospectus used in connection therewith related Prospectus, as may be necessary required by the rules, regulations or instructions applicable to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect to during the sale or other disposition of all Registrable Securities covered by such registration statement applicable period in accordance with the intended methods of disposition specified by the seller or sellers thereof set forth in Holders of the Registrable Shares covered by such registration statementRegistration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that the Company shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; provided, however, that Splitco may discontinue before filing a Registration Statement or Prospectus, or any registration of its securities that cease amendments or supplements thereto (other than reports required to be Registrable Securities; and (ii) provide notice filed by it under the Exchange Act), the Company shall furnish to such sellers the Holders of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities Shares covered by such registration statement such number of Registration Statement and their counsel for review and comment, copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order documents required to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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)be filed;
(d) use its reasonable best efforts to register or qualify notify the Holders of any Registrable Securities Shares covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, Registration Statement promptly and (if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(erequested) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: , (i) when the registration statement a Prospectus or any other Offering Document Prospectus supplement or post-effective amendment has been filed with the SEC filed, and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; , (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto Prospectus or for additional information; information regarding such Holders, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings for that purpose; , (iv) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Shares for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding for such purpose; , and (v) of the existence happening of any fact event that requires the making of which Splitco becomes aware which results any changes in the Offering Document such Registration Statement, Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact documents incorporated or omitting to state a material fact required deemed to be stated incorporated therein or necessary to make by reference so that they will not contain 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading:
(e) use commercially reasonable efforts to obtain the withdrawal 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 Registrable Shares for sale in any jurisdiction in the United States;
(f) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, as such Holder may reasonably request in order to facilitate the disposition of the Registrable Shares of such Holder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(g) prior to any public offering of Registrable Shares covered by such Registration Statement, use commercially reasonable efforts to register or qualify such Registrable Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Holders of such Registrable Shares shall reasonably request in writing; provided, however, that the Company shall in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then subject;
(h) upon the occurrence of any event contemplated by paragraph 5(d)(v) above, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made made, not misleading;
(fi) use commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be listed on each securities exchange or automated interdealer quotation system, if any, on which similar securities issued by the Company are then listed or quoted;
(j) use commercially reasonable efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, securities exchange or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderregulatory body;
(gk) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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 before the effective date of such registration statement; (ii) instruct such Registration Statement, provide the transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian Company for the Registrable SecuritiesShares with printed certificates for the Registrable Shares covered by such Registration Statement which are in a form eligible for deposit with The Depository Trust Company;
(il) enter into if such customary agreements (including, if applicable, offering is an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco may reasonably requestoffering, make reasonably available for inspection by counsel for each Participating Holderany Holder of Registrable Shares included in such Registration Statement, by counsel for any underwriter participating in any disposition to be effected offering pursuant to such registration statement Registration Statement, and by any attorney, accountant or other agent retained by any Participating such Holder or any such underwriter, underwriter (collectively, the “"Inspectors”"), all pertinent such financial and other recordsrecords and other information, pertinent corporate documents and properties of Splitco any of the Company and its subsidiaries and affiliates (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityresponsibilities; provided, however, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspector in writing are confidential shall not be disclosed to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company, which agreement shall permit the disclosure of such Records in connection such Registration Statement or the related Prospectus if either (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; provided however, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such registration statement;
(l) use its reasonable best efforts Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the Company's expense, may undertake appropriate action to prevent the issuance or obtain the withdrawal disclosure of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;such Records; and
(m) if such offering is an underwritten offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, and in such connection, (i) use commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holders of the Registrable Shares being sold), addressed to each selling Holder of Registrable Shares covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Registrable Shares covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings (iii) if requested and if an underwriting agreement is entered into, provide a CUSIP number indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder. In addition, the Company agrees (i) not to effect any public sale or distribution of its Common Stock, par value $.01 per share, or any securities convertible into or exchangeable or exercisable for all Registrable Securitiessuch securities, not later than during the 10 days prior to the effective date of any underwritten Demand or Piggyback Registration and until the registration statement;
earliest of (nA) use its reasonable 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 abandonment of such offering, or (B) the termination of any "hold back" period reasonably requested by the underwriters (taking into account with exceptions for issuances pursuant to outstanding options, warrants, and convertible or exchangeable securities, pursuant to employee and dividend reinvestment plans, and such other exceptions as are customary or agreed with the needs managing underwriter). The Company may require each Holder of Registrable Shares covered by a Registration Statement to furnish such information regarding such Holder and such Holder's intended method of disposition of such Registrable Shares as it may from time to time reasonably request in writing. If any such information is not furnished within a reasonable period of time after receipt of such request, the Company may exclude such Holder's Registrable Shares from such Registration Statement. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon receipt of any notice from the Company of the businesses happening of Splitcoany event of the kind described in Section 5(d)(ii), 5(d)(iii), 5(d)(iv) or 5(d)(v) hereof, that such Holder shall forthwith discontinue disposition of any SubsidiaryRegistrable Shares covered by such Registration Statement or the related Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(h) hereof, or until such Holder is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be ------ resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such Prospectus (such period during which disposition is discontinued being an "Interruption Period") and, in each caseif requested by ------------------- the Company, any successor thereto, and the requirements Holder shall deliver to the Company (at the expense of the marketing processCompany) all copies then in its possession, other than permanent file copies then in such holder's possession, of the marketing Prospectus covering such Registrable Shares at the time of receipt of such request. Each Holder of Registrable Securities Shares covered by a Registration Statement further agrees not to utilize any material other than the applicable current preliminary prospectus or Prospectus in any underwritten offering;
(o) promptly prior to connection with the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing offering of such registration statement), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regRegistrable Shares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Panamsat Corp), Registration Rights Agreement (Article Vii Trust Created Under Rene Anselmo Revocable Trust)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Agreement (or use best efforts or reasonable best efforts including any sale referred to accomplish the samein any Take-Down Notice), Splitco shallthe Company shall as promptly as reasonably practicable, as expeditiously as possiblesubject to the other provisions of this Agreement:
(ai) use reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Article 5; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch registration statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice, Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)such underwriters, and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letter from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the lead managing underwriters, if any, shall reasonably objectreasonable opportunity to participate in the preparation of such Registration Statement and each prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the context of a registered underwritten offering) of the Company, providedincluding reasonable access to (including responses to any reasonable inquiries by the lead managing underwriters and their counsel) the Company’s books and records, thatofficers, notwithstanding accountants and other advisors; provided that the foregoing, in no event shall Splitco be required to file any document same occurs during normal business hours after reasonable notice and does not materially interfere with the SEC which business of the Company; provided further that such persons shall first agree in the view of Splitco or its counsel does not comply writing with the requirements Company that any information that is reasonably designated by the Company as confidential at the time of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits delivery shall be kept confidential by such persons subject to state a material fact required to be stated therein or necessary to make any statement therein not misleadingcustomary exceptions;
(iii) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Article 5;
(iii) if requested by the lead managing underwriters, promptly include in a prospectus supplement or post-effective amendment such registration statement shall information as the lead managing underwriters, if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 5.03(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus and any summary prospectussupplement) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriters, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting v) use reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(vi) use reasonable 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;
(vii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities governmental authority for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (includingprovided, in the case of clause (F), that such “cold comfort” letter, events subsequent to notice need not include the date of nature or details concerning such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterevents;
(kviii) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) 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, in each case, as promptly as reasonably practicable;
(mix) provide a CUSIP number for all cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; and
(x) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (xi) 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;
(nxi) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Indenture and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legend upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offering;under the Registration Statement; and
(oxii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the filing Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters.
(b) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Selling Holder agrees that upon receipt of any document which notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 5.03(a)(vii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 2 contracts
Sources: Investment Agreement (Nikola Corp), Investment Agreement (ChargePoint Holdings, Inc.)
Registration Procedures. If and whenever Splitco Whenever the Company is required by the provisions of this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish Agreement, the same), Splitco shall, Company as expeditiously as possible:
(a) shall prepare and file with the SEC a the requisite registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereofstatement, which registration form (i) shall be selected by Splitco 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 shall include all financial statements required by the SEC to be filed therewith, and Splitco shall use its commercially reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta registration statement or prospectus or any amendments or supplements thereto, or before sending a response to an SEC comment letter prior to comparable statements under securities or blue sky laws of any such filingjurisdiction, Splitco or any Issuer Free Writing Prospectus related thereto, the Company will furnish to one counsel for the Holders participating in the planned offering (selected by the Majority Participating Holders, in the case of a registration pursuant to Section 2.1, and selected by the lead managing underwriter, in the case of a registration pursuant to Section 2.2) and to one counsel for the Managerlead managing underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes reasonably requested by such counsel and Company shall not file any Offering Document registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer Free Writing Prospectus related thereto to which the Participating Holders holders of a majority of the Registrable Securities covered by such registration statement or the underwriters, if any, shall reasonably object, provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(ib) shall prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder seller of Registrable Securities pursuant to such registration statement shall reasonably request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) shall furnish, without charge, to each Participating Holder seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits)thereto, the prospectus included in such registration statement (including statement, each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus Issuer Free Writing Prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller and underwriter reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting seller, and shall consent to the use in accordance with all applicable laws law of each such Offering Document registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free Writing Prospectus by each such Participating Holder 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);
(d) shall use its commercially reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall reasonably request in writingrequest, and do any and all other acts and things which that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect)jurisdictions, except that in no event shall Splitco the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would notwhere, but for the requirements of this paragraph (dSection 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) shall promptly notify each Participating Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any other Offering Document Issuer Free Writing Prospectus has been filed with the SEC and, with respect to the Offering Documentregistration statement or any post-effective amendment, when the same has become effective; ;
(ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; ;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; ;
(iv) of the receipt by Splitco 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 of any proceeding for such purpose; ;
(v) of the existence of any fact of which Splitco the Company becomes aware which results in the Offering Document registration statement, the prospectus 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 purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period existsthe Company, Splitco subject to the provisions of Section 2.1(c), promptly shall promptly prepare and file with the SEC, and furnish to each such seller and each underwriter, if any, a reasonable number of copies of of, a prospectus supplemented or 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;
(f) shall comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act)SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) 90 days if it is a fiscal year, after the end of such twelve 12 month period described hereafter), an earnings statement (statement, which need not be audited) , covering the period of at least twelve (12) 12 consecutive months beginning with the first day of Splitcothe Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) shall use commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities authorized to be listed on a national securities exchange or to secure designation if shares of all such the particular class of Registrable Securities as a Nasdaq National Market “national market system security” within are at that time, or will be immediately following the meaning of Rule 11Aa2-1 of the Exchange Act oroffering, failing that, secure Nasdaq National Market authorization for listed on such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirementsexchange;
(ih) 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) shall 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 that are to be distributed by any underwriters shall also be parties to any such underwriting agreement and may, at their option, require that Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwritersagreement);
(j) shall use its commercially reasonable best efforts (i) to obtain obtain, for the benefit of the underwriters, if any, of any registered underwritten offering of Registrable Securities, an opinion from Splitcothe Company’s counsel and a “cold comfort” letter and updates thereof from the Company’s independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use commercially reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(ml) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(nm) use its reasonable best efforts to 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 (underwriters, taking into account the needs of the Company’s businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) , in the marketing of Registrable Securities in any underwritten offering;
(on) promptly prior to shall cooperate with the filing sellers of any document which is to be incorporated by reference into Registrable Securities and the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter, if any, to facilitate the timely preparation and make delivery of certificates not bearing any restrictive legends representing the representatives Registrable Securities to be sold, and to cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement or, if not an underwritten offering, in accordance with the instructions of Splitcothe sellers of Registrable Securities;
(o) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(p) shall not take any action which Regulation M under the Exchange Act prohibits the Company from taking in connection with any “distribution” (as defined in Regulation M) of Registrable Securities;
(q) shall 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
(r) 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 Securities Act, any Subsidiaryis 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, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document when taken together with the SEC which in the view of Splitco or its counsel contains an related prospectus, will not contain any untrue statement of a material fact or omits omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. To the extent the Company is a well-known seasoned issuer as defined in Rule 405 under the Securities Act (a “WKSI”) at the time any Demand Registration Request is submitted to the Company, and such Demand Registration Request requests that the Company file an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) on Form S-3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be stated therein or kept effective. Notwithstanding anything contained herein to the contrary, the Company shall be entitled to exclude from the shelf registration statement such Registrable Securities as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel) is reasonably necessary for the offering to make qualify as a secondary (rather than a primary) offering pursuant to Rule 415 under the Securities Act in response to comments from the staff of the SEC. To the extent any statement therein not misleadingRegistrable Securities are so excluded, the Company agrees to use commercially reasonable efforts to register such excluded shares in accordance with Section 2.1 promptly when eligible to do so under applicable federal securities laws, rules, regulations and policies, as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel);
(p) . The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information in writing regarding such seller and the distribution of such Registrable Securities as the Company from time to counsel for each Participating Holder time reasonably may request. Each seller of Registrable Securities agrees that upon its request and receipt of any notice from the Company under Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities pursuant to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement and covering such Registrable Securities until such seller’s receipt of the copies of the supplemented or amended prospectus. In the event the Company shall give any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by referencesuch notice, the prospectus contained applicable period set forth in Section 2.4(b) shall be extended by the number of days during such regperiod from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus.
Appears in 2 contracts
Sources: Registration Rights Agreement (Liquid Holdings Group, Inc.), Registration Rights Agreement (Liquid Holdings Group LLC)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to use its commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts Section 3 and Section 4 hereof, the Company shall effect such registration to accomplish permit the same), Splitco shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an appropriate registration form of the SEC for the disposition sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) and pursuant thereto the Company shall be selected by Splitco cooperate in the sale of the securities and (ii) shall, in as soon as is reasonably practicable:
(a) Prepare and file with the case of SEC a shelf registration, Registration Statement or Registration Statements on such form which shall be available for the offer and sale of the Registrable Securities by the selling Holders holders thereof and such registration statement shall comply as to form in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof (including without limitation, a Partner Distribution), and Splitco shall use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such counsel and filed. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of applicable law.
(b) If such Registration Statement is a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;Shelf Registration Statement:
(i) prepare Subject to any notice by the Company in accordance with this Section 6(b) of the existence of any fact or event of the kind described in Section 6(d)(vi), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of the Registrable Securities covered thereby during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15 (d) of the Exchange Act, in the case of clause (A) of this Section 6(b)(i), correcting any such misstatement or omission, and, in the case of either clause (A) or (B) of this Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter.
(ii) Notwithstanding Section 6(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “Suspension Period”):
(A) if a majority of the Company’s board of directors, in good faith, determines that (1) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company, (2) after the advice of counsel, the sale of the shares of Common Stock covered by the Shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (3) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the SEC; or
(B) if a majority of the Company’s board of directors, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (1) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus, or (3) including in the Prospectus included in the Shelf Registration Statement any material information with respect to the plan of distribution not disclosed in the Shelf Registration Statement or any material change to such information. Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the Company shall give notice to each Demanding Qualified Holder with respect to such Shelf Registration Statement that the availability of the Shelf Registration Statement is suspended and, upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section 6(b). The Suspension Period shall not exceed 90 days in any 120-day period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable efforts to cause such post-effective amendment to be declared effective); provided, that Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period. The Company shall not be required to specify in the written notice to the Qualified Holders the nature of the event giving rise to the Suspension Period.
(c) Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(d) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension if the effectiveness of a Shelf Registration Statement has been suspended pursuant to Section 6 (b)), (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 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 and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose and (vi) of the happening of any event that makes any statement made in accordance 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Use its commercially reasonable 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.
(f) If requested by the managing underwriters, 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 managing underwriters, if any, and such holders may reasonably request in order to permit the intended methods method of disposition by distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(f) that are not, in the opinion of its securities that cease counsel for the Company, in compliance with applicable law.
(g) Furnish to be each selling holder of Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, at least one (1) conformed copy of the securities covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such registration statement such number holder, counsel or underwriter).
(h) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act amendment or of the rules or regulations thereunder, and other documents, supplement thereto as such seller and underwriter Persons may reasonably request in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(di) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or underwriter reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(j) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(k) Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or underwriterthe underwriters, if any, to consummate the disposition of such Registrable Securities.
(l) Upon the Registrable Securities in such jurisdictions (including keeping such registration occurrence of any event contemplated by Section 6(d)(vi) above, prepare a supplement or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required post-effective amendment to qualify the Registration Statement or a supplement to do business as a foreign corporation in the related Prospectus or any jurisdiction where it would not, but for the requirements of this paragraph (d), be required document incorporated or deemed to be so qualifiedincorporated therein by reference, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus 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 made, not misleading;.
(fm) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gn) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;Registration Statement.
(o) promptly prior Use its commercially reasonable efforts to the filing cause all shares of any document which is Registrable Securities covered by such Registration Statement 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 or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required authorized to be stated therein quoted on the Nasdaq Global Market or necessary to make any statement therein not misleading);listed on another national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the Nasdaq Global Market or listed on such exchange, as the case may be.
(p) furnish to counsel for each Participating Holder upon its request Enter into such agreements (including an underwriting agreement in form, scope and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement substance as is customary in underwritten offerings) and any post-effective amendments or supplements thereto, including financial statements and schedules, take all documents incorporated therein by reference, the prospectus contained in such regsu
Appears in 2 contracts
Sources: Registration Rights Agreement (Armstrong Energy, Inc.), Registration Rights Agreement (Armstrong Energy, Inc.)
Registration Procedures. If and whenever Splitco the Company is required by the provisions of this Agreement to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (Section 3 or Section 4, the Company shall use best efforts or its reasonable best efforts to accomplish effect such registration and to permit the same)sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof as promptly as practicable, Splitco shalland pursuant thereto the Company shall cooperate in all reasonable respects in the sale of the securities and shall use its reasonable best efforts, as expeditiously promptly as possiblepracticable to the extent applicable, to:
(a) prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) as shall be selected by Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders holders thereof or by the Company in accordance with the intended method or methods of distribution thereof and such registration statement shall comply as to form in all material respects accordance with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewiththis Agreement, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any the holders of the Registrable Securities covered by such filingRegistration Statement, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the Participating Holders holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, providedin writing, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of on a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingtimely basis;
(ib) prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities the securities covered by such registration statement Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement;
(c) notify each holder of Registrable Securities covered by the applicable Registration Statement, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (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 been filed or become effective, (ii) of any written comments by the SEC, or any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information (whether before or after the effective date of the Registration Statement) or any other correspondence with the SEC relating to, or which may affect, the Registration Statement, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(r) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act;
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company filed any shelf Registration Statement and if requested by a holder of Registrable Securities, the Company shall include in such shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to such holder of Registrable Securities) in order to ensure that such holder of Registrable Securities may be added to such shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;
(f) if requested by the managing underwriters, if any, or the holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6(e) that are not, in the reasonable opinion of its securities that cease counsel for the Company, in compliance with applicable law;
(g) furnish or make available to be Registrable Securities; and (ii) provide notice to such sellers each holder of Registrable Securities and covered by the Managerapplicable Registration Statement, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder its counsel and each managing underwriter, if any, without charge, as many conformed copies of the securities Registration Statement, the Prospectus, any Issuer Free Writing Prospectus, and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (including those incorporated by reference) as such holder, counsel or underwriter may reasonably request; provided that the Company may furnish or make available any such documents in electronic format;
(h) deliver to each holder of Registrable Securities covered by such registration statement such number of the applicable Registration Statement, its counsel, and the underwriters, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement Prospectus or Prospectuses (including each preliminary prospectus and any summary prospectusform of Prospectus) and any each amendment or supplement thereto and such other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, documents as such seller and underwriter Persons may reasonably request from time to time in order to facilitate connection with the public sale or other disposition distribution of the Registrable Securities owned by Securities; provided that the Company may furnish or make available any such seller documents in electronic format (Splitco other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the holders of Registrable Securities covered by the applicable Registration Statement and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus)supplement thereto;
(di) use its reasonable best efforts prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the holders of Registrable Securities covered by the applicable Registration Statement, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration statement or qualification) of such Registrable Securities for offer and sale under such other the securities or state “blue sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or the managing underwriters reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, holders of Registrable Securities to consummate the disposition of the such Registrable Securities in such jurisdictions jurisdiction; provided, however, that the Company will not be required to (including keeping such registration or qualification i) qualify generally to do business in effect for so long as such registration statement remains in effect), except that in no event shall Splitco any jurisdiction where would not otherwise be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph Agreement or (d), be required to be so qualified, to ii) take any action that would subject itself it to taxation in any such jurisdiction or to consent to general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject but for this Agreement;
(ej) promptly notify each Participating Holder cooperate with, and each direct the Company’s transfer agent to cooperate with, the holders of Registrable Securities covered by the applicable Registration Statement and the managing underwriterunderwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request reasonably required by the SEC or state securities authority for amendments or supplements to Company’s transfer agent, the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending Company shall promptly after the effectiveness of the registration statement or Registration Statement cause an opinion of counsel as to the initiation effectiveness of any proceedings for that purpose; Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(ivk) upon the occurrence of, and the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under being sold thereunder, such that the securities or state “blue sky” laws of Registration Statement will not contain any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting omit to state a any material fact required to be stated therein or necessary to make any statement therein the statements 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, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall Prospectus 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 made, not misleading;
(fl) comply (and continue prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunderRegistrable Securities;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(im) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statementRegistration Statement;
(n) cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;
(o) cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter, if any, to consummate the disposition of such Registrable Securities; provided however that the Company will not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) instruct file any general consent to service of process in any such transfer agent jurisdiction or (Aiii) subject itself to releasetaxation in any such jurisdiction if it is not otherwise so subject.;
(p) enter into such agreements (including underwriting agreements in form, on scope and substance as is customary in Underwritten Offerings and such effective dateother documents reasonably required under the terms of such underwriting agreements, any stop transfer order with respect to including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the certificates with respect to holders of a majority of the Registrable Securities being sold, and sold in connection therewith (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations including those reasonably requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriters, if applicable, an underwriting agreementany) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters)Securities;
(jq) use its reasonable best efforts (i) make such representations and warranties to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily holders of Registrable Securities covered by such opinions the applicable Registration Statement and “cold comfort” letters (including, in the case of such “cold 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 “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, in form, substance and scope as are customarily made by issuers in public offerings similar to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriteroffering then being undertaking;
(kr) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel or auditors and all memoranda relating to discussions in connection with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as Splitco may reasonably requesta customary due diligence review, make reasonably available for inspection by counsel for each Participating Holdera representative of the holders of Registrable Securities covered by the applicable Registration Statement, by counsel for any underwriter participating in any such disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitcoany counsel or accountants retained by such holders or underwriter (collectively, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regthe
Appears in 2 contracts
Sources: Registration Rights Agreement (GNC Holdings, Inc.), Securities Purchase Agreement (GNC Holdings, Inc.)
Registration Procedures. (a) If and whenever Splitco the Company is required by the provisions of this Agreement to use reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Agreement (or use best efforts or reasonable best efforts including any sale referred to accomplish the samein any Take-Down Notice), Splitco shallthe Company shall as promptly as reasonably practicable, as expeditiously as possiblesubject to the other provisions of this Agreement:
(ai) use commercially reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof, which registration form (i) shall be selected by Splitco distribution of such securities and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and Splitco shall thereafter use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (the terms of this Article VI; provided, however, that as far in advance as reasonably practicable the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing an Offering Documentsuch registration statement or any amendments or supplements thereto, or before sending including any prospectus supplements in connection with a response sale referred to an SEC comment letter prior to any such filingin a Take-Down Notice, Splitco the Company will furnish to one counsel for the Holders participating holders which are including Registrable Securities in the planned offering such registration (selected by the Participating “Selling Holders”) and to one counsel for the Managerlead managing underwriters, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of such the counsel (including any objections if any) to any information pertaining such holders and counsel (if any) to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)such underwriters, and Splitco shall make the changes other documents reasonably requested by any such counsel, including any comment letter from the SEC, and, if requested by any such counsel, provide such counsel and shall not file any Offering Document to which the Participating Holders or the lead managing underwriters, if any, reasonable opportunity to participate in the preparation of such Registration Statement and each prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation (in the context of a registered underwritten offering) of the Company, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriters and their counsel) the Company’s books and records, officers, accountants and other advisors; provided that the same occurs during normal business hours after reasonable notice and does not materially interfere with the business of the Company; provided further that such persons shall first agree in writing with the Company that any information that is reasonably object, provided, that, notwithstanding designated by the foregoing, in Company as confidential at the time of delivery shall be kept confidential by such persons subject to customary exceptions. In no event shall Splitco the Purchaser be required to file any document with identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC which requests that the Purchaser be identified as a statutory underwriter in the view of Splitco or Registration Statement, the Purchaser will have an opportunity to withdraw its counsel does not comply with Registerable Securities from the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleadingRegistration Statement;
(iii) prepare and file with the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep such registration statement continuously Registration Statement effective for such period as any Participating Holder and Available pursuant to the terms of this Article VI;
(iii) if requested by the lead managing underwriters, promptly include in a prospectus supplement or post-effective amendment such registration statement shall information as the lead managing underwriters, if any, and such holders may reasonably request and in order to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with permit the intended methods method of disposition by 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 seller or sellers thereof set forth in Company has received such registration statementrequest; provided, however, that Splitco may discontinue the Company shall not be required to take any registration actions under this Section 6.03(a)(iii) that are not, in the opinion of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and counsel for the ManagerCompany, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriatein compliance with applicable law;
(civ) furnish, without charge, furnish to each Participating Holder the Selling Holders and each underwriter, if any, of the securities covered being sold by such registration statement Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included and any prospectus supplement contained in or deemed part of such registration statement Registration Statement (including each preliminary prospectus and any summary prospectussupplement) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunderAct, and such other documents, documents as such seller Selling Holders and underwriter underwriters, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller Selling Holders;
(Splitco hereby consenting v) use reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(vi) use reasonable 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;
(vii) as promptly as practicable notify in accordance with all applicable laws writing the holders of each such Offering Document by each such Participating Holder Registrable Securities 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 such Registration Statement utilized in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwritertherewith, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment thereto, when the same has become effective; (iiB) of any comment letter or request by the SEC or any other U.S. or state securities authority Governmental Entity for amendments or supplements to the registration statement such Registration Statement or the prospectus related thereto or for additional information; (iiiC) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement such Registration Statement or the initiation of any proceedings by any person for that purpose; (ivD) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (viE) if at any time the representations and warranties contemplated by of the Company contained in any agreement (including any underwriting agreement, securities sale agreement, or other similar agreement, relating ) related to the offering shall such registration cease to be true and correct in all any material respectsrespect; andand (F) upon the happening of any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended documents so that, as thereafter delivered to in the purchasers case of such Registrable SecuritiesRegistration Statement, such prospectus shall it will not include an contain any 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, 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 made, not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts (i) to obtain an opinion from Splitco’s counsel and a “cold comfort” letter and updates thereof from the independent public accountants who have certified Splitco’s financial statements (and/or any other 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 “cold comfort” letters (includingprovided, in the case of clause (F), that such “cold comfort” letter, events subsequent to notice need not include the date of nature or details concerning such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriterevents;
(kviii) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, 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 Splitco 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 attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statement;
(l) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statementsuch 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 or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) 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, in each case, as promptly as reasonably practicable;
(mix) provide a CUSIP number for all 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;
(x) prior to any public offering of Registrable Securities, not later than use reasonable efforts to register or qualify or cooperate with the effective date of Selling Holders in connection with the registration statementor qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the 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;
(nxi) use its reasonable best efforts to make available cooperate with the holders to facilitate the timely preparation and delivery of book-entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Convertible Bond and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its employees transfer agent when and personnel for participation in “road shows” as required by such transfer agent from time to time, any authorizations, certificates, directions and other marketing efforts evidence required by the transfer agent which authorize and otherwise provide reasonable assistance direct the transfer agent to issue such Registrable Securities without legend upon sale by the underwriters (taking into account the needs holder of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, and the requirements of the marketing process) in the marketing such shares of Registrable Securities in any underwritten offeringunder the Registration Statement;
(oxii) promptly prior agrees with each holder of Registrable Securities that, in connection with any Underwritten Offering or other resale pursuant to the Registration Statement in accordance with the terms hereof, it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters; and
(xiii) to the extent any Purchaser seeks to effect an in-kind distribution of its Registrable Securities to its shareholders, members, partners or limited partners, the Company agrees to cooperate with the Purchaser in such distribution and to use reasonable efforts to cause its transfer agent to cooperate with the Purchaser in such distribution, including filing one or more prospectus supplements to evidence the distribution and to register for resale the Registrable Securities distributed to the shareholders, members, partners or limited partners of the Purchaser in such distribution.
(b) To the extent not prohibited by applicable laws, the Company will use reasonable efforts to facilitate and (if required) approve or consent to the deposit of any or all of the Company Ordinary Shares, which the Purchasers have received by conversion from the Notes, with the ADS Depositary for the issuance of ADSs in connection with a concurrent resale of such ADSs subject to an effective registration statement as described in this Article VI in accordance with the applicable deposit agreement in connection with the Company’s ADS program. Without limiting the generality of the foregoing, to the extent permitted by applicable laws, (i) the Company agrees to execute, deliver and provide such instrument or document, and carry out any other necessary or appropriate action, as may be reasonably requested or required by the ADS Depositary, any Purchaser or the managing underwriter of any Underwritten Offering, (ii) the Company agrees to file, or to cause the ADS Depositary to file, a registration statement on Form F-6 which registers under the Securities Act the maximum number of ADSs that may be issued upon conversion of the Notes in accordance with the terms of the Convertible Bond, (iii) the Company agrees to pay all fees and expenses related to the ADS program in connection with the filing of a Registration Statement, conversion of a Purchaser’s Company Ordinary Shares into ADSs and the sale of ADSs pursuant to the Registration Statement, including in an Underwritten Offering, (iv) the Company agrees to maintain its ADS program at least until all of the Registrable Securities have been sold, and (v) the Company agrees to maintain the ratio of Company Ordinary Shares to ADSs at a rate of 1:1 (or, if the ratio is changed, seek to amend the Convertible Bond in a manner to ensure that the right of holders of Notes to convert into the anticipated number of Company Ordinary Shares is not adversely affected).
(c) The Company may require each Selling Holder and each underwriter, if any, to (i) furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any document which other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in this Section 6.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(d) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 6.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such Selling Holder is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference into in such prospectus. The Company shall use commercially reasonable efforts to cure the registration statement or the prospectus events described in clauses (after the initial filing of such registration statementB), (C), (D), (E) and prior to (F) of Section 6.03(a)(vii) so that the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, applicable prospectus may be resumed at the earliest 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regpracticable moment.
Appears in 2 contracts
Sources: Subscription Agreement (Oatly Group AB), Subscription Agreement (Oatly Group AB)
Registration Procedures. If and whenever Splitco 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 this Agreement (Article II, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or use best efforts or reasonable best efforts to accomplish methods of disposition thereof, and pursuant thereto the same), Splitco Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC a registration statement Registration Statement or Registration Statements on an appropriate registration such 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 Splitco 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 or the Company in all material respects accordance with the requirements intended method or methods of the applicable registration form and include all financial statements required by the SEC to be filed therewithdistribution thereof, and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and to remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, and no less than 180 days, (provided herein; provided, however, that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or before sending a response otherwise make available to an SEC comment letter prior to any such filingthe Selling Holders, Splitco will furnish to one their counsel for and the Holders participating in the planned offering (selected by the Participating Holders) and to one counsel for the Managermanaging underwriter(s), if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SECthereto), which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof)counsel, and Splitco shall make the changes such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any Offering Document such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to any registration pursuant to Section 2.1 or 2.2 to which the Participating Holders Holders’ Representative, its counsel, or the underwritersmanaging underwriter(s), if any, shall reasonably object, providedin writing, thaton a timely basis, notwithstanding the foregoingunless, in no event shall Splitco be required the opinion of the Company, such filing is necessary to file any document with the SEC which in the view of Splitco or its counsel does not comply with the requirements of the Securities Act or of the rules of regulations thereunder or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;applicable Law.
(ib) prepare Prepare and file with the SEC such amendments, amendments and post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) 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 during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such period Registration Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as any Participating Holder pursuant to such registration statement shall request and may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of Splitco’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus as so supplemented to be filed under pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), each free writing prospectus utilized if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus 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 or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing 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 and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the existence of any fact of which the Company becomes aware that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus 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 any Prospectus or Issuer Free Writing 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.
(d) Use its 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 reasonably earliest practical date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection therewithwith an underwritten offering, promptly include in each casea Prospectus supplement, in all material respects in conformity with post-effective amendment or Issuer Free Writing Prospectus such information as the requirements of the Securities Act managing underwriter(s), if any, or of the rules or regulations thereunder, and other documents, as such seller and underwriter Holders 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, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other disposition correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities owned by such seller (Splitco Securities; and the Company, subject to the last paragraph of this Section 2.4, hereby consenting consents to the use in accordance with all applicable laws of such Prospectus and each such Offering Document amendment or supplement thereto by each such Participating Holder of the Selling Holders and the underwritersmanaging underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement Prospectus and any such amendment or prospectus);supplement thereto.
(dh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), 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 for offer and sale under such other the securities or state “blue skyBlue Sky” laws of such jurisdictions within the United States as any sellers of Registrable Securities seller or managing underwriter(s) reasonably requests in writing 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 to take any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which action that may be reasonably necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or underwriterthe managing underwriter(s), if any, to consummate the disposition of such Registrable Securities.
(k) Upon the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effectoccurrence of any event contemplated by Section 2.4(c)(ii), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (dc)(iii), be required (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be so qualifiedincorporated therein by reference or an Issuer Free Writing Prospectus related thereto, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or file any other Offering Document has been filed with the SEC and, with respect to the Offering Document, when the same has become effective; (ii) of any comment letter or request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Splitco of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended document so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSelling Holders, such prospectus shall Prospectus 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 made, not misleading;.
(fl) comply (and continue Prior to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) daysRegistration Statement relating to the Registrable Securities, or ninety (90) days if it is provide a fiscal year, after CUSIP number for the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;Registrable Securities.
(gm) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, including without limitation all corporate governance requirements;
(i) provide Provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement Registration Statement from and after a date not later than the effective date of such registration statement; Registration Statement.
(iin) instruct Use its reasonable best efforts to cause all shares of Registrable Securities covered by such transfer agent (A) Registration Statement to releasebe authorized to be listed on each national securities exchange, if any, on which similar securities issued by the Company are then listed.
(o) Enter into such effective dateagreements (including an underwriting agreement in form, any stop transfer order with respect to scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the certificates with respect to Holders of a majority of the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, sold in such denominations requested connection therewith or by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (includingunderwriter(s), if applicableany, an underwriting agreement) and take such other actions as the Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (it being understood that i) make such representations and warranties to the Selling Holders and the managing underwriter(s), if any, with respect to the business of the Registrable Securities which are Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be distributed incorporated by any underwriters shall be parties to any such underwriting agreement reference therein, in each case, in form, substance and mayscope as are customarily made by issuers in underwritten offerings, at their optionand, require that Splitco make to if true, confirm the same if and for the benefit of such Holders the representationswhen requested, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(jii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities opinions of counsel to the Company and updates thereof (iwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the Selling Holders of the Registrable Securities), addressed to each Selling Holder of Registrable Securities and each of the managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and managing underwriter(s), (iii) use its reasonable best efforts to obtain an opinion from Splitco’s counsel and a “cold comfort” letter letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified Splitco’s the financial statements (and/or any other financial statements) included or incorporated by reference in such registration statementRegistration Statement, in addressed to each caseSelling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering such matters as are of the type customarily covered by such opinions and in “cold comfort” letters in connection with underwritten offerings, (includingiv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 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 in connection therewith and the managing underwriter(s) and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the case of underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such “cold comfort” letterunderwriting or similar agreement, events subsequent or as and to the date extent required thereunder.
(p) Upon execution of such financial statements) delivered to underwriters in underwritten public offeringsa customary confidentiality agreement, which opinion and letter shall be dated make available for inspection by a representative of the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to Selling Holders, the underwritersmanaging underwriter(s), if any, and to the Participating Holders, and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(k) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and Splitco, its counsel any attorneys 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 Splitco 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 attorney, accountant or other agent accountants retained by any Participating Holder such Selling Holders or any such underwriter, (collectively, the “Inspectors”managing underwriter(s), all pertinent at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany and its Subsidiaries, and to use reasonable best efforts to cause applicable personnel the officers, directors and representatives employees of Splitco to meet with the Inspectors (if so requested) Company and its Subsidiaries to supply the all information in each case reasonably requested by any such Inspector representative, managing underwriter(s), attorney or accountant in connection with such registration statement;Registration Statement.
(lq) Cause its officers to use its their reasonable best efforts to prevent support the issuance or obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification of any marketing of the Registrable Securities for sale in any jurisdictioncovered by the Registration Statement (including, in each casewithout limitation, as promptly as reasonably practicable;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for by participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (”) taking into account the needs of the businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (Company’s business needs; provided, that, notwithstanding neither the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or Company nor its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regofficers
Appears in 2 contracts
Sources: Registration Rights Agreement (Moneygram International Inc), Securities Purchase Agreement (Moneygram International Inc)
Registration Procedures. If and whenever Splitco is required In the case of each Registration, qualification or compliance effected by the provisions Company pursuant to this Section 2, the Company will keep the Investors and Major Common Holders advised in writing as to the initiation of this Agreement each registration, qualification and compliance and as to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (or use best efforts or reasonable best efforts to accomplish the same), Splitco shall, as expeditiously as possiblecompletion thereof. The Company will:
(a) prepare Prepare and file as soon as practicable with the SEC Commission a registration statement on an appropriate registration form of Registration Statement with respect to 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 Splitco and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC securities to be filed therewith, Registered and Splitco shall use its reasonable best efforts to cause such registration statement Registration Statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request, until the Investors and no less than 180 days, (Major Common Holders have completed the distribution described in the Registration Statement relating thereto; provided, however, however that as far in advance as reasonably practicable before filing an Offering Documenta Registration Statement, or before sending a response to an SEC comment letter prior to any such filing, Splitco the Company will furnish to one counsel for the Holders participating in holders of Registrable Securities covered by such Registration Statement, the planned offering (selected by the Participating Holders) and to one counsel for the Managerunderwriters, if any, and any attorney, accountant or other agent retained by any such holders of Registrable Securities or underwriters (a) copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel (including any objections to any information pertaining to any Participating Holder and its plan of distribution and otherwise to the extent necessaryholders, if at all, to complete the filing or maintain the effectiveness thereof), and Splitco shall make the changes reasonably requested by such their counsel and shall not file any Offering Document to which the Participating Holders or the underwriters, if any, and (b) if requested, financial and other information required by the Commission to be included in such Registration Statement and all financial and other records, pertinent corporate documents and properties of the Company customarily reviewed in connection with an underwritten registration; and shall reasonably objectcause the officers, provideddirectors and employees of the Company, thatcounsel to the Company and independent certified public accountants to the Company, notwithstanding the foregoingto respond to such inquiries and supply all information, as shall be necessary, in no event shall Splitco be required the opinion of respective counsel to such holders and underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, and will not file any document Registration Statement to which the holders of at least a majority of the Registrable Securities covered by such Registration Statement or the underwriter, if any, shall, for reasonable reasons, object;
(b) Furnish to the Investor, Major Common Holders and to each underwriter such number of copies of the Registration Statement and all amendments thereto and the prospectus included therein (including each preliminary prospectus and any amendments or supplements to the prospectus or preliminary prospectus) as such persons may reasonably request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement (and the Company hereby consents to the use of, in accordance with all applicable laws, of each of the Registration Statement and any amendments thereto and any prospectus and any supplement thereto by each such seller and underwriters, if any, in connection with the SEC which offering and sale of Registrable Securities covered by such Registration Statement);
(c) Prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in the view of Splitco connection with such Registration Statement as may be necessary to keep such Registration Statement effective or its counsel does not to comply with the requirements provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement for the period set forth in Section 2.8(a) above;
(d) Use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities laws of such jurisdictions as shall be reasonably requested by the Investors and Major Common Holders, to keep such Registration or qualification in effect for so long as the Registration Statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller; provided, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(e) Use its best efforts to (i) obtain the withdrawal of any order suspending the effectiveness of such Registration Statement or sales thereunder at the earliest possible time and (ii) cause all Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities of United States jurisdictions as may be necessary to enable the seller thereof to consummate the disposition of such Registrable Securities;
(f) Comply with all applicable rules and regulations of regulations thereunder the Commission;
(g) Permit any Investor or contains Major Common Holder which, 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 Statement or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Investor or Major Common Holder and its counsel should be included;
(h) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering provided the Investors shall also enter into and perform their respective obligations under such an agreement;
(i) Notify the holders of Registrable Securities covered by the Registration Statement at any time (i) when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement the statements therein not misleading;
(i) prepare and file with misleading or incomplete in the SEC such amendments, post-effective amendments and supplements (including, without limitation, any reports required to be filed pursuant to the Exchange Act) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for such period as any Participating Holder pursuant to such registration statement shall request and to comply with the provisions light of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; providedcircumstances then existing, however, that Splitco may discontinue any registration of its securities that cease to be Registrable Securities; and (ii) provide notice to such sellers of Registrable Securities and when the Manager, if any, of Splitco’s reasonable determination that a prospectus relating thereto or any supplement or post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in all material respects in conformity with the requirements of the Securities Act or of the rules or regulations thereunder, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (Splitco hereby consenting to the use in accordance with all applicable laws of each such Offering Document 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);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall Splitco be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any and, if requested by any such Person, confirm such notice in writing: (i) when the registration statement or any other Offering Document has been filed with the SEC filed, and, with respect to the Offering Documentsuch Registration Statement or any post-effective amendment, when the same has become effective; , (iiiii) of any comment letter or request by the SEC or state securities authority Commission for amendments or supplements to the registration statement Registration Statement or the prospectus related thereto or for additional information; (iii) , of the issuance by the SEC Commission of any stop order suspending the effectiveness of the registration statement Registration Statement or the initiation of any proceedings for that such purpose; , (iv) if at any time the representations and warranties of the Company to the Investor and Major Common Holder in connection with the registration cease to be accurate in all material respects, or (v) of the receipt by Splitco the Company of any notification with respect to the suspension of the qualification of any the Registrable Securities for sale under the securities or state “blue sky” laws of in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (v) of the existence of any fact of which Splitco becomes aware which results in the Offering Document or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), unless Splitco has declared that a Postponement Period exists, Splitco shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of 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;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Splitco’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by Splitco 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, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Splitco 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 comply (and continue to comply) with the requirements of any self-regulatory organization applicable to Splitco, 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; (ii) instruct such transfer agent (A) to release, on such effective date, any stop transfer order with respect to the certificates with respect to the Registrable Securities being sold, and (B) to furnish certificates without restrictive legends representing ownership of the shares being sold, in such denominations requested by the sellers of the Registrable Securities or any managing underwriter; and (iii) in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the 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 Splitco make to and for the benefit of such Holders the representations, warranties and covenants of Splitco which are being made to and for the benefit of such underwriters);
(j) use Use its reasonable best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) to obtain an opinion from Splitco’s opinion, dated as of such date, of the counsel and a “cold comfort” letter and updates thereof from representing the independent public accountants who have certified Splitco’s financial statements (and/or any other financial statements) included or incorporated by reference in Company for the purposes of such registration statementRegistration, in each case, in customary form and covering such matters substance as are is customarily covered by such opinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered given to underwriters in an underwritten public offeringsoffering, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory addressed to the underwriters, if any, and to each Investor and Major Common Holder selling Registrable Securities in the Participating Holders, offering and (ii) furnish to each Participating Holder upon its request and to each underwriter, if any, a copy “comfort” letter dated as of such opinion date, from the independent certified public accountants of the Company, in form and letter substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to such underwriterthe underwriters and the Investor;
(k) deliver promptly to counsel for each Participating Holder Cooperate with the selling holders of Registrable Securities and to each the managing underwriterunderwriters, if any, copies to facilitate the timely preparation and delivery of all correspondence between certificates representing the SEC Registrable Securities not bearing any restrictive legends and Splitcoin a form eligible for deposit with The Depository Trust Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect other exchange agent reasonably acceptable to the registration statementCompany, and, upon receipt of such confidentiality agreements as Splitco 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 sold and cause such Registrable Securities to be in such registration statement denominations and by registered in such names as the managing underwriters, if any, or holder of Registrable Securities may request at least three (3) business days prior to any attorney, accountant or other agent retained by any Participating Holder or any such underwriter, (collectively, sale of Registrable Securities to the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Splitco (the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and to use reasonable best efforts to cause applicable personnel and representatives of Splitco to meet with the Inspectors (if so requested) and to supply the information reasonably requested by any such Inspector in connection with such registration statementunderwriters;
(l) use its Use all reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of take all other steps necessary to effect the registration statement, or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicablecovered by the Registration Statement contemplated hereby;
(m) provide Cause all such Registrable Securities registered pursuant to a Registration Statement that becomes effective to be listed on each securities exchange on which similar securities issued by the Company are then listed; and
(n) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to a Registration Statement that becomes effective and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of the registration statement;
(n) use its reasonable 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 businesses of Splitco, any Subsidiary, and, in each case, any successor thereto, 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), and prior to the filing or use 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 representatives of Splitco, any Subsidiary, and, in each case, any successor thereto, 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 (provided, that, notwithstanding the foregoing, in no event shall Splitco be required to file any document with the SEC which in the view of Splitco or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(p) furnish to counsel for each Participating Holder upon its request and to each managing underwriter, without charge, upon request, at least one conformed 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 regRegistration.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sunrun Inc.)