Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible: (a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel); (b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder; (c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; (d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; (e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act; (f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction); (g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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; (h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA; (i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement; (j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request); (k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; (l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission; (n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included; (o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order; (p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities; (q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request; (r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; (s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request; (t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters; (u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective; (v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and (w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 5 contracts
Sources: Preferred Stock Purchase Agreement (Ondas Holdings Inc.), Registration Rights Agreement (Ondas Holdings Inc.), Registration Rights Agreement (Ondas Holdings Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and the sale of such any shares of Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possiblepossible under the circumstances:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary and final prospectus) and such other documents as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such registration statement under such other the securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions sellers of the Registrable Securities owned by such seller (provided or, in the case of an underwritten public offering, the managing underwriter reasonably shall request, provided, however, that the Parent Company shall not be required in connection therewith or as a condition thereto to (i) qualify generally to do business in any jurisdiction where states or jurisdictions in which it would not is not, at the time, so qualified, or otherwise be required to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to general taxation in any such jurisdictionstates or jurisdictions;
(e) use its reasonable best efforts to list the Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system on which similar securities issued by the Company are then listed (if any);
(f) provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in light of the request circumstances then existing. The holders of any Registrable Securities covered by such seller, the Parent promptly shall prepare, file with the Commission registration statement agree upon receipt of such notice forthwith to cease making offers and furnish to each such seller a reasonable number sales of copies of a supplement or amendment Registrable Securities pursuant to such registration statement or deliveries of the prospectus contained therein for any purpose until the Company has prepared and furnished such amendment or supplement to the prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing. The Company shall promptly prepare and furnish such amendment or supplement to the prospectus to each such seller of Registrable Securities and each such underwriter;
(h) cause all such if the offering is underwritten use its reasonable best efforts to furnish on the date that Registrable Securities are first delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters stating that such registration statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements contained therein) and (C) to such other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such seller or its counsel and (ii) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent registered public accounting firm within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) Business Days prior to the date of such letter) with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable Securities, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all relevant financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement, provided such parties agree to keep such information confidential;
(lj) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any advise each selling holder of Registrable Securities whoSecurities, in its good faith judgment (based on the advice of counsel)promptly after it shall receive notice or obtain knowledge thereof, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order by the Commission suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement or the initiation or threatening of any proceeding for sale in any jurisdiction, the Parent shall such purpose and promptly use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its all commercially reasonable efforts to cause prevent the issuance of any stop order or to obtain its withdrawal if such Registrable Securities covered by such registration statement to stop order should 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 such Registrable Securitiesissued;
(qk) cooperate with the selling holders of Registrable Securities covered by the registration statement and the managing underwriter or agentunderwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under the registration statement and enable sold, such securities certificates to be in such denominations and registered in such names as such holders or the managing underwriter, or agent, if any, or such holders underwriters may requestrequest at least two (2) Business Days prior to any sale of Registrable Securities;
(rl) cooperate with each permit any holder of Registrable Securities covered by the registration statement and each underwriter or agent participating Securities, which holder, in the disposition sole and exclusive judgment, exercised in good faith, of such Registrable Securities and their respective counsel in connection with any filings required holder, might be deemed to be made with FINRA;a controlling person of the Company, to participate in good faith in the preparation of such registration or comparable statement; and
(sm) if such registration includes an underwritten public offering, use its commercially reasonable efforts to prevent the issuance, and, if issued, to obtain the withdrawal, of any order suspending the effectiveness of any registration statement at the earliest possible time. For purposes of Section 7(a) and 7(b) and of Section 4(b), the period of distribution of Registrable Securities in a cold comfort letter from firm commitment underwritten public offering shall be deemed to extend until the Parent’s independent public accountants earlier of such time as each underwriter has completed the distribution of all securities purchased by it, and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
one hundred eighty (t180) provide a legal opinion of the Parent’s outside counsel, dated days after the effective date thereof. The period of distribution of Registrable Securities in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Securities covered thereby and one hundred eighty (180) days after the effective date thereof. In connection with each registration hereunder, the sellers of Registrable Securities will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall be requested by the Company or as shall be necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration statement (andpursuant to Sections 4, if such registration includes 5 or 6 covering an underwritten Public Offeringpublic offering, dated the date Company and each seller of Registrable Securities agrees to enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are reasonable and customary in the securities business for such an arrangement between such underwriter and companies of the closing under Company’s size and investment stature. Any managing underwriter engaged by the underwriting agreement)Company in any registration made pursuant to Sections 4 or 6 shall require the approval in writing of the holders of a majority of the Preferred Stock requesting such registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Sections 4, 5, 6 or 7 with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and Registrable Securities of any selling holder that such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion holder shall be addressed furnish to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable SecuritiesCompany such information regarding itself, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at held by it, and the time an Automatic Shelf Registration Statement is filed, pay intended method of disposition of such fee at securities as shall be reasonably necessary to effect the registration of such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the holder’s Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 5 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (BioNano Genomics, Inc), Investors’ Rights Agreement (BioNano Genomics, Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant this Agreement to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any of the sale of such Registrable Holders under the Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement on the appropriate form under the Securities Act with respect to such Registrable Securities securities, which form shall comply as to form with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith, and use commercially its reasonable best efforts to cause such registration statement to become effectiveeffective and, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities a registration pursuant to Section 2 or 3, keep such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements theretoeffective for a period of up to one hundred and twenty (120) days or, if earlier, until the Parent shall furnish to counsel selected by distribution contemplated in the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)registration statement has been completed;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of selling Holder whose Registrable Securities thereunder Shares are being registered such number of copies of such registration statement, each amendment and supplement any amendments thereto, any documents incorporated by reference therein, the prospectus included in such registration statement (prospectus, including each a preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as such seller selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerselling Holder and covered by the registration;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from the securities covered by such registration with respect to such Registrable Securities statement under such other the securities or state “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party each selling Holder may reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (request; provided that the Parent Company shall not be required to (i) register or qualify generally the securities in any such states or jurisdictions which require it to qualify to do business in any jurisdiction where it would not otherwise be required business, subject itself to qualify but for this Section 4(f), (ii) taxation or consent to general service of process therein;
(e) within a reasonable time before each filing of the registration statement or prospectus or amendments or supplements thereto with the Commission, upon request of the Holders furnish to counsel selected by the Holders copies of such documents proposed to be filed;
(f) make available to each selling Holder, any managing underwriter participating in any such jurisdiction disposition pursuant to a registration statement, and any attorney, accountant or other agent or representative retained by the selling Holders or underwriter (iii) subject itself collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to taxation in enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such jurisdiction)Inspector in connection with such registration statement, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith, subject, in each case, to such confidentiality agreements as the Company shall reasonably request;
(g) promptly notify enter into any reasonable underwriting agreement, in writing each seller of such Registrable Securities (i) after it receives notice thereofusual and customary form, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request required by the Commission proposed managing underwriter or underwriter(s) for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included selling Holders; each Holder participating in such registration statement contains underwriting shall also enter into and perform its obligations under such an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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 misleadingagreement;
(h) cause all the securities covered by such Registrable Securities registration statement to be listed on each the securities exchange or quoted on the quotation system on which the similar securities issued by the Parent Company are then listed andor quoted (or, if the Ordinary Shares are not so listedyet listed or quoted, to be listed then on a securities such exchange and, without limiting or quotation system as the generality of selling Holders and the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRACompany shall determine);
(i) provide appoint a transfer agent and registrar for all such Registrable Securities covered by a registration statement not later than the effective date of such registration statement;
(j) enter into and perform notify each selling Holder, promptly after the Company receives notice thereof, of the time when such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party registration statement has been declared effective or the underwriters, if any, reasonably request in order a supplement to expedite or facilitate the disposition any prospectus forming a part of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);registration statement has been filed; and
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to after such registration statement and any attorneybecomes effective, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance notify each selling Holder of any stop order suspending request by the effectiveness of a registration statement, SEC that the Company amend or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in supplement such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 4 contracts
Sources: Registration Rights Agreement (Caesarstone Ltd.), Registration Rights Agreement (Tene Growth Capital III (G.P.) Co Ltd.), Registration Rights Agreement (Mifalei Sdot-Yam Agricultural Cooperative Society Ltd.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 2 or 3 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Registrable Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except prepare and promptly, and in connection with a Piggyback Registration, prepare in accordance with any event within 45 days after the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such requestrequest for registration has been delivered to the Company, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable best efforts to cause such registration statement to become effective, and remain effective for the period of the distribution contemplated thereby (determined as hereinafter provided) or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed requested to be fileda “shelf”, which documents shall be subject for as long as requested to the review and comment of such counsel)extent permitted by applicable law;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Stock covered by such registration statement;
(d) furnish use its reasonable best efforts to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Registrable Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or jurisdiction;
(iiie) subject itself use its reasonable best efforts to taxation in list the Registrable Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such jurisdiction)Registrable Stock not later than the effective date of such registration statement;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, and at the request of any such seller, the Parent promptly shall prepare, file with the Commission seller prepare and furnish to each such seller a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesStock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingthen existing;
(mh) if the offering is underwritten and at the request of any seller of Registrable Stock, furnish on the date that Registrable Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or financial or statistical data contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters or sellers reasonably may request;
(i) use its reasonable best efforts to cooperate with the sellers in the disposition of the Registrable Stock covered by such registration statement, including without limitation in the case of an underwritten offering causing key executives of the Company and its subsidiaries to participate under the direction of the managing underwriter in a “road show” scheduled by such managing underwriter in such locations and of such duration as in the judgment of such managing underwriter are appropriate for such underwritten offering;
(j) in connection with the preparation and filing of each registration statement registering Registrable Stock under the Securities Act, and before filing any such registration statement or any other document in connection therewith, give the participating holders and their underwriters, if any, and their respective counsel and accountants, the opportunity to review and comment on such registration statement, each prospectus included therein or filed with the Commission, each amendment thereof or supplement thereto and any related underwriting agreement or other document to be filed, and give each of the aforementioned persons such access to its books and records, including all financial and other records, pertinent corporate documents and properties of the Company, and such opportunities to discuss the business of the Company with its officers, directors and employees and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such holders, underwriters, counsel or accountants, to conduct a reasonable investigation within the meaning of the Securities Act; and
(k) otherwise use its commercially reasonable efforts to comply with all the Securities Act, the Exchange Act and any other applicable rules and regulations of the Commission;
(n) permit any holder , and make available to its securities holders, as soon as reasonably practicable, an earning statement covering the period of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated at least 12 months after the effective date of such registration statement, which earning statement (andshall satisfy Section 11(a) of the Securities Act and any applicable regulations thereunder, if including Rule 158. For purposes of Sections 4(a) and 4(b) and of Section 2(d), the period of distribution of Registrable Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Registrable Stock in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Stock covered thereby and 120 days after the effective date thereof or in the case of a registration requested to be a “shelf”, for as long as requested to the extent permitted by applicable law. In connection with each registration hereunder, the sellers of Registrable Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration includes pursuant to Sections 2 or 3 covering an underwritten Public Offeringpublic offering, dated the date Company and each seller agree to enter into a written underwriting agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the closing under Company’s size and investment stature; provided, however, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriters shall also be made to and for the benefit of such sellers of Registrable Stock, (ii) no seller shall be required to make, and the Company shall ensure that no underwriter requires any seller to make, any representations and warranties to or agreements with any underwriter in a registration effected pursuant to Sections 2 or 3 other than customary representations, warranties and agreements relating to such seller’s title to Registrable Stock and authority to enter into the underwriting agreement), with (iii) the liability of each seller of Registrable Stock respect of any indemnification, contribution or other obligation of such seller of Registrable Stock arising under such underwriting agreement (A) shall be limited to the losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, each amendment and supplement thereto, the prospectus included therein (including the any such preliminary prospectus) , final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and such other documents relating thereto in customary form and covering such matters of conformity with written information furnished to the type customarily covered Company by legal opinions or on behalf of such nature, which opinion seller of Registrable Stock expressly for inclusion therein and (B) shall be addressed not in any event exceed an amount equal to the net proceeds to such seller of Registrable Stock (after deduction of all underwriters;
(u’ discounts and commissions) if from the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering disposition of the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay disposed of by such fee at seller of Registrable Stock pursuant to such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 4 contracts
Sources: Registration Rights Agreement (Communication Intelligence Corp), Registration Rights Agreement (Communication Intelligence Corp), Registration Rights Agreement (Phoenix Venture Fund LLC)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and each such amendment and supplement thereto (in each case including all exhibits) and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request; provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such seller, the Parent and promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement prospectus supplemented or amendment to such prospectus amended so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Stock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller of Restricted Stock, use its best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, to such effect as reasonably may be requested by counsel for the underwriters, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters reasonably may request;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, reasonable access to all financial and other records, pertinent corporate and business documents and properties of the Parent Company, as shall be necessary to enable them to exercise their due diligence responsibilitysuch parties may reasonably request, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(li) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects cooperate with the Securities Actselling holders of Restricted Stock and the managing underwriters, is filed if any, to facilitate the timely preparation and delivery of certificates representing Restricted Stock to be sold, such certificates to be in accordance with such denominations and registered in such names as such holders or the Securities Act managing underwriters may request at least two business days prior to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby any sale of Restricted Stock; and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(nj) permit any holder of Registrable Securities whoRestricted Stock which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) included and to permit any other holder of Restricted Stock participating in the event registration to review such registration or comparable statement during its preparation. For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the issuance sale of all Restricted Stock covered thereby and 180 days after the effective date thereof. In connection with each registration hereunder, the sellers of Restricted Stock will furnish to the Company in writing such information requested by the Company with respect to themselves and the proposed distribution by them as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws and to make the registration statement correct, accurate and complete in all respects with respect to such sellers; provided, however, that this requirement shall not be deemed to limit any disclosure obligation arising out of any stop order suspending seller’s relationship to the effectiveness Company if one of a registration statementsuch seller’s agents or affiliates is an officer, director or control person of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionCompany. In addition, the Parent shall use its commercially reasonable efforts promptly to obtain sellers shall, if requested by the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by Company, execute such other governmental agencies or authorities agreements, which are reasonably satisfactory to them and which shall contain such provisions as may be necessary customary and reasonable in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by accomplish the registration statement and of the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate Restricted Stock. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 4 contracts
Sources: Registration Rights Agreement (Cogent Communications Group Inc), Registration Rights Agreement (Cogent Communications Group Inc), Registration Rights Agreement (Cogent Communications Group Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration StatementThe Company will, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case requisite Registration Statement to effect such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period ending when all and to comply with the provisions of the securities Act with respect to the disposition of all the Shares covered by such registration statement Registration Statement until the earlier of the time as all of such Shares have been disposed of in accordance with the intended methods of distribution disposition by the sellers thereof Purchaser set forth in such registration statement (but not in any event before Registration Statement or the expiration of any longer period required under date that the Securities Act or, if such registration statement relates Shares are eligible for resale pursuant to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of Rule 144 under the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementAct;
(dc) furnish to such number of conformed copies of such Registration Statement and of each seller of Registrable Securities thereunder such amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included contained in such registration statement Registration Statement (including each preliminary prospectus and any summary prospectus)) and any other prospectus filed under Rule 424 under the Act, each Free-Writing Prospectus in conformity with the requirements of the Act, and such other documents documents, as such seller the Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerrequest;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts (i) to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities the Shares under such other securities or blue sky laws of such jurisdictions States of the United States of America where an exemption is not available and as the lead underwriter Purchaser shall reasonably request, (ii) to keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such Registration Statement remains in effect, and do (iii) to take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller the Purchaser to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such seller (provided the Purchaser, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f), subdivision (iid) be obligated to be so qualified or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify use its reasonable best efforts to cause all Shares covered by such Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in writing each seller the opinion of counsel to the Company and counsel to the Purchaser to enable the Purchaser to consummate the disposition of such Registrable Securities (iShares;
f) after it receives notice thereof, of notify the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, andin the light of the circumstances under which they were made, and at the request of any such seller, the Parent Purchaser promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading;
(mg) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder , and, if required, make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of Registrable Securities whoat least twelve months, in its good faith judgment (based on the advice of counsel)but not more than eighteen months, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate beginning with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated first full calendar month after the effective date of such registration Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder, and promptly furnish to Purchaser a copy of any amendment or supplement to such Registration Statement or prospectus;
h) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all the Shares covered by such Registration Statement from and after a date not later than the effective date of such registration; and
i) use its reasonable best efforts to list the Shares on any national securities exchange on which the shares of the same class covered by such Registration Statement are then listed and, if no such registration includes an underwritten Public Offeringshares are so listed, dated on any national securities exchange on which the date common stock is then listed. Purchaser agrees by acquisition of the closing under Shares that, upon receipt of any notice from the underwriting agreement)Company of the happening of any event of the kind described in subdivision (f) of this Section 7.3, with respect such holder will forthwith discontinue such disposition of the Shares pursuant to the registration statementRegistration Statement until Purchaser's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (f) of this Section 7.3 and, each amendment and supplement theretoif 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 included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities Shares current at the time an Automatic Shelf Registration Statement is filed, pay of receipt of such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivenotice.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Boulder Acquisitions Inc), Stock Purchase Agreement (Boulder Acquisitions Inc), Stock Purchase Agreement (Boulder Acquisitions Inc)
Registration Procedures. In connection with the Registration to be effected pursuant case of' each registration, qualification and/or compliance contemplated by this Section 7, the Company shall keep the Shareholder advised in writing as to the Resale Shelf Registration Statementinitiation of proceedings for such registration, qualification and compliance and as to the completion thereof, and whenever shall advise the holders Shareholder, upon request, of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementthe progress of such proceedings. In addition, the Parent Company shall follow procedures customarily observed by issuers in public offerings, and accord to the Shareholder all rights (including, without limitation, the right to perform appropriate "due diligence") customarily accorded to selling shareholders in secondary distributions and accord such rights to the managing underwriters if the transaction in question is an underwritten public offering. At the expense of the Company or of the party or parties bearing the expenses of such registration, qualification and compliance, the Company shall (a) use its all commercially reasonable efforts to effect the registration keep such registration, qualification and the sale of compliance current and effective by such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses action as may be necessary or appropriate, including, without limitation, the filing of post-effective amendments and supplements to comply with applicable securities lawsany registration statement or prospectus, with respect for such period (not to such exceed one hundred eighty (180) days) as is necessary to permit the sale and distribution of the Registrable Securities and Shares pursuant thereto, (b) use all commercially reasonable efforts to cause take all necessary action under any applicable blue sky or other applicable securities law to permit such registration statement to become effectivesale and/or distribution, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected all as reasonably requested by the Applicable Approving Party copies of all such documents proposed to be filedShareholder, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition applicable requirements of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statementregulatory entities, each amendment and supplement theretoprovided, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent Company shall not be required to (i) so register or qualify the Registrable Shares in any jurisdiction if, solely as a result thereof, the Company must qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)therein, (ii) consent to general service of process in any such jurisdiction therein, or (iii) subject itself submit to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective liability for state or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedlocal taxes, (iic) after receipt thereoffurnish the Shareholder such number of registration statements, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationprospectuses, supplements, amendments, and offering circulars as the Shareholder from time to tie may reasonably request, (iiid) at any time when a prospectus relating thereto is required use all commercially reasonable efforts to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such list all Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed Shares on each securities exchange on which similar securities issued by of the Parent same class are then listed and, if not so listed, and (e) use all commercially reasonable efforts to furnish (or cause to be listed on a securities exchange andfurnished) to the managing underwriters all undertakings, without limiting the generality agreements, certificates, opinions, financial statements and "comfort letters" of the foregoing, sort customarily provided to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the managing underwriters, if anythe transaction in question is an underwritten public offering. In connection with and as a condition to each registration hereunder, reasonably request in order to expedite or facilitate the disposition of Shareholder shall (a) provide such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares information and preparing for and participating in execute such number of “road shows”, investor presentations and marketing events documents as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent required in connection with such registration statement;
registration, (lb) take agree to sell Registrable Shares on the basis provided in any underwriting arrangements, and (c) complete and execute all reasonable actions to ensure that any Free-Writing Prospectus utilized in questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required or requested under the terms of such underwriting arrangements. In connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act each registration pursuant to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes Section 7.1 covering an underwritten public offering, use its commercially reasonable efforts the Company and the Shareholder agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to the underwriters, managing underwriter in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 4 contracts
Sources: Subscription and Shareholders Agreement (Winsloew Furniture Inc), Subscription and Shareholders Agreement (Winsloew Furniture Inc), Subscription and Shareholders Agreement (Winsloew Furniture Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 75 days following receipt after the end of such requestthe period within which requests for registration may be given to the Company, file with the Securities and Exchange Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days that, before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent Company shall furnish to the counsel selected by the Applicable Approving Party 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);
(b) notify in writing each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement not less than 180 days (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offeringoffering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale sales of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller of Registrable Securities (provided that the Parent 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 Section 4(fSECTION 4(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofSecurities, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made, and, at the request of any such seller, the Parent promptly Company shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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 misleadingmisleading in light of the circumstances under which they were made;
(hf) use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed and, if not so listed, to be listed on a securities exchange the NASD automated quotation system and, without limiting if listed on the generality NASD automated quotation system, use its best efforts to secure designation of the foregoing, to arrange for at least two market makers to register as such with respect to all such Registrable Securities with FINRAcovered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities;
(ig) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(jh) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, including effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably requestshares);
(ki) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement statement, and any attorney, accountant accountant, or other agent retained by any seller of Registrable Securities or any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany reasonably requested by such underwriter, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any seller of Registrable Securities, or any such seller, underwriter, attorney, accountant accountant, or agent in connection with such registration statementstatement and assist and, at the request of any participating seller or underwriter, use reasonable best efforts to cause such officers or directors to participate in presentations to prospective purchasers;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mj) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(ok) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock equity securities included in such registration statement for sale in any jurisdiction, the Parent Company shall use its commercially reasonable best efforts promptly to obtain the withdrawal of such order;
(pl) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(qm) cooperate with obtain one or more cold comfort letters, addressed to the holders of Registrable Securities covered by the registration statement and the managing underwriter or agentunderwriters, if any, to facilitate and dated the timely preparation and delivery effective date of certificates representing securities to be sold under the such registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter(and, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter dated the date of the closing under the underwriting agreement), from the Parent’s Company's independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters holders of a majority of the Registrable Securities being sold in such registered offering reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration reasonably request;statement). To the extent consistent with Statement on Auditing Standards No. 72 of the American Institute of Certified Public Accounts, the Company shall use reasonable efforts to also have such cold comfort letters addressed to the holders of the Registrable Securities being sold in such registered offering; and
(tn) provide a legal opinion of the Parent’s Company's outside counsel, dated the effective date of such registration statement (andor, if such registration includes an underwritten Public Offeringpublic offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto (which counsel and opinions shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold). Such legal opinions shall be addressed to each selling holder and the underwriters, if any, and shall be in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 4 contracts
Sources: Registration Agreement (Digitalnet Holdings Inc), Registration Agreement (Digitalnet Holdings Inc), Registration Agreement (Digitalnet Holdings Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any Registrable Securities under the Securities Act as provided in Section 2, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall cooperate in the sale of such Registrable Securities and shall, as expeditiously as reasonably possible:
(a) except prepare and file, in connection each case as promptly as practicable, with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the CD&R Stockholders thereof or by the Company in accordance with the Securities Act and intended method or methods of distribution thereof, make all applicable rules and regulations promulgated thereunder required filings with FINRA, and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effectiveto remain effective as provided herein; provided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each a “Free Writing Prospectus”)), the Parent Company shall furnish or otherwise make available to the CD&R Stockholders, their counsel selected by and the Applicable Approving Party managing underwriter(s), if any, copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel, and 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 or Prospectus, or any amendments or supplements thereto (including Free Writing Prospectuses) with respect to a Demand Registration to which CD&R Stockholders or the 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;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements 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 a during the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 during Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such period 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 CD&R Stockholder of Registrable Securities, its counsel and the managing underwriter(s) of any Underwritten Offering (i) when a Registration Statement, pre-effective amendment to any Registration Statement, 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 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(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 such Registrable Securities for sale in any jurisdiction, or the initiation 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, 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 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 the light of the circumstances under which they were made, not misleading (which notice shall notify the selling CD&R 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);
(d) furnish use its reasonable best efforts to each seller 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 thereunder such number for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the CD&R Stockholders, or, in the case of copies an Underwritten Offering, the managing underwriter(s) of such registration statementUnderwritten Offering, each promptly include in a Prospectus supplement or post-effective amendment and supplement thereto, such information as the prospectus included in CD&R Stockholders or such registration statement (including each preliminary prospectusmanaging underwriter(s), each Free-Writing Prospectus and such other documents as such seller the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by in accordance with the intended method or methods of distribution of such seller;
(e) during any period securities set forth in which a prospectus is the Registration Statement 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 the Company shall not be required to be delivered take any actions under this Section 4(e) that are not, in the Securities Actopinion of counsel for the Company, promptly file all documents required to be filed in compliance with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actapplicable law;
(f) deliver to each selling CD&R Stockholder 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 (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 the Company, 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 selling CD&R Stockholders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) use its commercially reasonable best efforts to register, register or qualify or secure an cooperate with the selling CD&R Stockholders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration with respect to or qualification) of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller CD&R Stockholders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions jurisdiction in accordance with the intended method or methods of the Registrable Securities owned by such seller (provided disposition thereof; provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f4(g), (ii) consent subject itself to taxation in any jurisdiction wherein it is not so subject or (iii) take any action that would subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gh) promptly notify in writing cooperate with the selling CD&R Stockholders of Registrable Securities 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 seller CD&R Stockholder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such CD&R Stockholder 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 CD&R Stockholders 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;
(i) after it receives notice thereofupon the occurrence of any event contemplated by Section 4(c)(vi) above, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to the Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Actincorporated therein by reference, of the happening of or file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus 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 contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(mj) otherwise use its commercially reasonable efforts provide and cause to comply with be maintained a transfer agent and registrar for all applicable rules such Registrable Securities from and regulations after the effective date of the Commissionsuch Registration Statement;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pk) use its commercially reasonable best efforts to cause such all shares of Registrable Securities covered by such registration statement any Registration Statement to be registered with or approved by listed on each primary national securities exchange (if any) on which shares of the particular class of Registrable Securities are at that time listed;
(l) in the case of any Underwritten Offering in which any CD&R Stockholder participates, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other governmental agencies or authorities customary and reasonable actions as the managing underwriters of such offering may be necessary request in order to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities, including adding information requested by the managing underwriters to the Prospectus, and making 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 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;
(qm) cooperate in the case of any Underwritten Offering in which any CD&R Stockholder participates, (A) make reasonably available, for inspection by the managing underwriters of such Underwritten 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 holders Company’s independent auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each CD&R Stockholder selling Registrable Securities in such offering (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 legal opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)) to such underwriters and to each CD&R Stockholder selling Registrable Securities in such offering in connection therewith (subject to delivery to outside counsel of each such CD&R Stockholder’s representation that it is knowledgeable with respect to the due diligence review process that an underwriter would perform in connection with an offering of securities registered pursuant to the Securities Act), 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; provided, however, that any such records and other information provided under clauses (A) and (B) above that is not generally publicly available shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(n) in the case of any Underwritten Offering in which any CD&R Stockholder participates, cause its management to use their reasonable best efforts to support the marketing of the Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be Registration Statement (including participation in such denominations and registered in such names number of “road shows” as the managing underwriterunderwriter(s) reasonably request, and in any management diligence meetings or agent, if any, teleconferences as the underwriter(s) or such holders may their counsel reasonably request);
(ro) cooperate with each holder seller of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;; and
(sp) if such registration includes an underwritten public offering, otherwise use its commercially reasonable best efforts to obtain a cold comfort letter from the Parent’s independent public accountants comply with all applicable rules and addressed to the underwriters, in customary form and covering such matters regulations of the type customarily covered by cold comfort letters SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the underwriters in such registration reasonably request;
(t) provide a legal opinion period of at least twelve months beginning with the first day of the ParentCompany’s outside counsel, dated first full calendar quarter after the effective date of any Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. The Company may require each CD&R Stockholder 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 (andregarding such seller and the distribution of such Registrable Securities as the Company may, if from time to time, reasonably request and the Company may exclude from such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the of any CD&R Stockholder who unreasonably fails to furnish such information within a reasonable time an Automatic Shelf Registration Statement is filed, pay after receiving such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.request. The Company
Appears in 4 contracts
Sources: Investment Agreement, Registration Rights Agreement (Beacon Roofing Supply Inc), Registration Rights Agreement (CD&R Boulder Holdings, L.P.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4 or 5 to this Agreement, the Parent shall use its all reasonable efforts or all commercially reasonable efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement on Form S-1 or Form S-3 if available with respect to such Registrable Securities securities and use commercially all reasonable efforts to cause such registration statement to become effectiveand remain effective for the period of the distribution contemplated thereby (determined as hereinafter provided) (subject, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectiveof any Incidental Registration, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment rights of the Company to abandon any such counselregistration as set forth in Section 5);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeregistration pursuant to Section 4, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) specified above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use all reasonable efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified, to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself submit to taxation in any liability for state or local taxes where it is not otherwise liable for such jurisdiction)taxes;
(ge) promptly use all reasonable efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any such sellerseller of Restricted Stock, use all reasonable efforts to furnish on the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter date that Restricted Stock is delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange underwriters for at least two market makers to register as such with respect sale pursuant to such Registrable Securities with FINRA;
registration: (i) provide a transfer agent and registrar an opinion, dated such date, of the counsel representing the Company for all such Registrable Securities not later than the effective date purposes of such registration statement;
(j) enter into registration, in form and perform such customary agreements (including underwriting agreements substance as is customarily given to underwriters in customary form) and take all such other actions as the Applicable Approving Party or an underwritten public offering, addressed to the underwriters, if any, reasonably and to the seller or sellers making such request; and (ii) at the request of either the underwriters or sellers of Restricted Stock, a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in order to expedite or facilitate the disposition opinion of such Registrable accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including, without limitation, effecting a stock split or a combination including information as to the period ending no more than five business days prior to the date of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events letter) with respect to such registration as the such underwriters managing such offering reasonably may reasonably request);; and
(kh) make reasonably available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and use all reasonable efforts to cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all , in each case as and to the extent necessary to permit the sellers to conduct a reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with investigation within the meaning of the Securities Act. To minimize disruption and expense to the Company during the course of the registration process, is filed in accordance the sellers will act through a single law firm and a single accounting firm and will enter into confidentiality agreements with the Securities Act Company in form and substance reasonably satisfactory to the extent required thereby, is retained in accordance with Company and the Securities Act sellers prior to the extent required thereby and, when taken together with the related prospectus, shall not contain receiving any untrue statement of a material fact confidential or omit to state a material fact necessary to make the statements therein, in light proprietary information of the circumstances under which they were made, not misleading;
(mCompany. For purposes of Section 7(a) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations 7(b) and of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counselSection 4(c), could reasonably be expected to the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be an underwriter or a controlling Person deemed to extend until the earlier of the Parent to participate in sale of all Restricted Stock covered thereby, or nine (9) months after the preparation effective date thereof. In connection with each registration hereunder, the sellers of such registration or comparable statement and to require the insertion therein of material furnished Restricted Stock will furnish to the Parent Company in writing, which in writing such information with respect to themselves and the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4 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;
(s) if such registration includes 5 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 4 contracts
Sources: Merger Agreement (Edison Venture Fund Ii Lp), Merger Agreement (Perkin Elmer Corp), Merger Agreement (Strategic Diagnostics Inc/De/)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 3 and 4 hereof to this Agreement, the Parent shall use its commercially reasonable efforts to effect affect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use its commercially reasonable efforts to cause such registration statement to become effective, or (2) effective in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)expeditious manner;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for a period ending when all of during the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and such other documents as such persons reasonably may request in order to facilitate the intended disposition of the Registrable Securities covered by such registration statement;
(d) furnish use its commercially reasonable efforts (i) to each seller register or qualify the Registrable Securities covered by such registration statement under the state securities or “blue sky” laws of such jurisdictions as the sellers of Registrable Securities thereunder or, in the case of an underwritten public offering, the managing underwriter, reasonably shall request, (ii) to prepare and file in those jurisdictions such number of copies of amendments (including post-effective amendments) and supplements, and take such other actions, as may be necessary to maintain such registration statement, each amendment and supplement thereto, qualification in effect at all times for the prospectus included in period of distribution contemplated thereby and (iii) to take such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents further action as such seller may reasonably request in order be necessary or advisable to facilitate enable the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided jurisdictions, provided, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) use its commercially reasonable efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the common stock of the Company is then listed;
(f) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains an statement, as then in effect, includes any untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing and promptly amend or supplement such registration statement to correct any such untrue statement or omission;
(g) promptly notify each seller of Registrable Securities of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose and make every reasonable effort to prevent the issuance of any stop order and, andif any stop order is issued, to obtain the lifting thereof at the earliest possible time;
(h) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(i) if the offering is an underwritten offering, at the request of any such sellerseller of Registrable Securities, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter on the date that Registrable Securities are delivered to the purchasers underwriters for sale pursuant to such registration: (i) a copy of an opinion, dated such date, of counsel representing the Company for the purposes of such Registrable Securitiesregistration, addressed to the underwriters, stating that such registration statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus shall and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not contain an untrue statement express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a material fact or omit to state any fact necessary to make letter dated such date from the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued independent public accountants retained by the Parent Company, addressed to the underwriters, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent registered public accountants within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all registration as such Registrable Securities not later than the effective date of such registration statementunderwriters reasonably may request;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such other actions securities) representing the Registrable Securities to be sold pursuant to the registration statement and to enable such certificates to be in such denominations and registered in such names as the Applicable Approving Party Investor or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the any underwriters managing such offering may reasonably request);
(k) take all other reasonable actions necessary to expedite and facilitate the registration of the Registrable Securities pursuant to the registration statement; and
(l) promptly make available for inspection by any seller the sellers of Registrable Securities, any managing underwriter participating in any disposition pursuant to such registration statement statement, and any attorney, attorney or accountant or other agent retained by any such seller underwriter or underwriterselected by any such sellers, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, Company and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivesuch.
Appears in 4 contracts
Sources: Registration Rights Agreement (Hochman David P), Registration Rights Agreement (Hochman David P), Registration Rights Agreement (Hochman Carole S)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required to use its best efforts to effect the registration of Registrable Securities have requested that any Registrable Securities be registered under the Securities Act pursuant to this AgreementSection 4.1 hereof, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method methods of disposition thereofthereof specified by the Stockholders participating therein. Without limiting the foregoing (and subject to its rights under Section 4.1 hereof not to register or to delay registration of Registrable Securities), and pursuant thereto the Parent shall Company in each such case will, as expeditiously as reasonably possible:
(a) except in connection prepare and file with a Piggyback Registration, prepare in accordance with the Commission the requisite registration statement to effect such registration (including such audited financial statements as may be required by the Securities Act and all applicable or the rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1thereunder) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable its best efforts to cause such registration statement to become effectiveeffective within 120 days of the initial filing thereof; provided, or (2) that as far in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days advance as practicable before filing a such registration statement or prospectus or any amendments or supplements amendment thereto, the Parent shall Company will furnish to counsel selected by for the Applicable Approving Party Requesting Stockholders copies of reasonably complete drafts of all such documents proposed to be filedfiled (including exhibits), which documents and any such Stockholder shall be subject have the opportunity to object to any information pertaining solely to such Stockholder that is contained therein, and the review and comment of Company will make the corrections reasonably requested by such counsel)Stockholder with respect to such information prior to filing any such registration statement or amendment;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement during statement, in accordance with the intended methods of disposition thereof, until the earlier of (i) such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (ii) 180 days after such registration statement becomes effective;
(c) promptly notify each Requesting Stockholder and the underwriter or underwriters, if any:
(i) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective;
(ii) of any written request by the Commission for amendments or supplements to such registration statement or prospectus;
(iii) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of such registration statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction;
(d) furnish to each seller holder of Registrable Securities thereunder included in such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included contained in such registration statement (including each preliminary prospectus and any summary prospectus)) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such holder’s Registrable Securities, each Free-Writing Prospectus and such other documents documents, as such seller holder may reasonably request in order to facilitate the disposition of the its Registrable Securities owned by such sellerSecurities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such all Registrable Securities included in such registration statement under such other securities or blue sky laws of such jurisdictions as the lead underwriter each holder thereof shall reasonably request and to keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided holder, except that the Parent Company shall not for any such purpose be required to (i) to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f)paragraph (e) be obligated to be so qualified, (ii) to subject itself to taxation in any such jurisdiction or (iii) to consent to general service of process in any jurisdiction;
(f) use its best efforts to cause all Registrable Securities included in such jurisdiction registration statement to be registered with or (iii) subject itself approved by such other governmental agencies or authorities as may be necessary to taxation in any enable each holder thereof to consummate the disposition of such jurisdiction)Registrable Securities;
(g) promptly notify in writing to the extent any of the following are obtained by or furnished to the Company or the underwriters, furnish to each seller of Requesting Stockholder a signed counterpart, addressed to such Registrable Securities Requesting Stockholder (and the underwriters, if any), of
(i) after it receives notice thereof, an opinion of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission counsel for the amendment or supplementing Company, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), reasonably satisfactory in form and substance to such Stockholder and its counsel, and
(ii) a “comfort” letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten Public Offerings of securities and, in the case of the accountants’ letter, such other financial matters as such Stockholder (or prospectus or for additional informationthe underwriters, and if any) may reasonably request;
(iiih) notify each Stockholder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the any prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, and at the request of any such seller, the Parent Stockholder promptly shall prepare, file with the Commission prepare and furnish to each such seller Stockholder a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(hi) cause otherwise use its best efforts to comply with all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality applicable rules and regulations of the foregoingCommission, and make available to arrange for its securityholders, as soon as reasonably practicable, an earnings statement covering the period of at least two market makers to register as such twelve (12) months, but not more than 18 months, beginning with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable SecuritiesRequesting Stockholder, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller Stockholder or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be Company reasonably necessary to enable them such Persons to exercise their due diligence responsibility, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lk) take provide a transfer agent and registrar for all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated not later than the effective date of such registration statement statement; and
(and, if l) use its best efforts to cause all Registrable Securities included in such registration includes an underwritten Public Offeringstatement to be listed, dated the date upon official notice of issuance, on any securities exchange on which any of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters securities of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times same class as the Registrable Securities are then listed. The Company may require each Stockholder whose Registrable Securities are being registered to, and each such Stockholder, as a condition to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsincluding Registrable Securities in such registration, at shall, furnish the end Company and the underwriters with such information and affidavits regarding such Stockholder and the distribution of such securities as the Company and the underwriters may from time to time reasonably request in writing in connection with such registration. Upon receipt of any notice from the Company of the third yearhappening of any event of the kind described in paragraph (h) of this Section 4.2, refile a new Automatic Shelf Registration Statement covering each Stockholder will forthwith discontinue such Stockholder’s disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities, Securities until such Stockholder receives the copies of the supplemented or amended prospectus contemplated by paragraph (h) of this Section 4.2 and, if so directed by the Company, shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Stockholder’s possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any time such notice, the period referred to in paragraph (b)(ii) of this Section 4.2 shall be extended by a number of days equal to the number of days during the period from and including the giving of notice pursuant to paragraph (h) of this Section 4.2 and to and including the date when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep each Stockholder whose Registrable Securities are included in such registration statement effective receives the copies of the supplemented or amended prospectus contemplated by paragraph (including by filing a new Resale Shelf Registration or Shelf Registration, if necessaryh) during the period throughout which such registration statement is required to be kept effectiveof this Section 4.2.
Appears in 4 contracts
Sources: Stockholders Agreement (International Securities Exchange, Inc.), Stockholders Agreement (International Securities Exchange, Inc.), Stockholders Agreement (International Securities Exchange, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 2 and Section 3, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and, pursuant thereto, the Company shall cooperate in the sale of such Registrable Securities and pursuant thereto the Parent shall shall, as expeditiously as reasonably possible:
(a) except prepare and file, in connection each case as promptly as practicable, with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with the Securities Act and intended method or methods of distribution thereof, make all applicable rules and regulations promulgated thereunder required filings with FINRA, and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (remain effective as provided herein; provided that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each 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 pursuant to a Demand Notice (other than a Shelf Registration Statement), the Parent Company shall (i) furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement, their counsel selected by and the Applicable Approving Party managing underwriter(s), if any, copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and (ii) if requested by such counsel, provide such counsel (A) reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and (B) 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 (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein and including Free Writing Prospectuses), with respect to a Demand Registration to which the demanding Holder, the holders of a majority of the Registrable Securities covered by such Registration Statement (or their counsel) or the 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;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(ci) prepare and file with the Commission SEC such amendments and supplements 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 a during the period ending when provided herein, (ii) comply in all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during Registration Statement and (iii) cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such period 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 underwriter(s), if any, (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 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(n) 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 such 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, as then in effect, 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 the 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) furnish use its reasonable best efforts to each seller 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 thereunder such number of copies of such registration statement, each amendment and supplement thereto, for sale in any jurisdiction at the prospectus included in such registration statement earliest date reasonably practical;
(including each preliminary prospectuse) if requested by the managing underwriter(s), each Freeif any, a Holder making a Demand Notice or Take-Writing Down Notice with respect to such 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 and supplement or post-effective amendment such other documents information as the managing underwriter(s), if any, or such seller Holder or Holders, as the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by in accordance with the intended method or methods of distribution of such seller;
securities set forth in the Registration Statement 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 (e) during any period in which a prospectus is provided that the Company shall not be required to be delivered take any actions under this Section 4(e) that are not, in the Securities Actopinion of counsel for the Company, promptly file all documents required to be filed in compliance with the Commission, including pursuant to Sections 13(aapplicable law), 13(c), 14 or 15(d) of the Securities Act;
(f) deliver to each selling Holder, its counsel, and the underwriter(s), if any, 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 (the Company, 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 selling Holders and the underwriter(s), if any, in connection with the offering 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 its commercially reasonable best efforts to register, register or qualify or secure an cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration with respect to or qualification) of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller Holders to consummate the disposition of such Registrable Securities in such jurisdictions jurisdiction in accordance with the intended method or methods of the Registrable Securities owned by such seller (disposition thereof; provided that the Parent Company shall not be required to (ix) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f4(g), (iiy) consent subject itself to taxation in any jurisdiction wherein it is not so subject or (z) 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 (iii) subject itself to taxation qualification or any sale of Registrable Securities in any such jurisdictionconnection therewith);
(gh) promptly notify 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, unless required by applicable law) or book-entry positions representing Registrable Securities to be sold after receiving written representations from such selling Holders that the Registrable Securities represented by the certificates or book-entry positions so delivered by such Holder will be transferred in writing each 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;
(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 the managing underwriter(s), if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(ij) after it receives notice thereofupon the occurrence of any event contemplated by Section 4(c)(vi) above, of the date and time when such registration statement and each promptly prepare a supplement or post-effective amendment thereto has become effective to the Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Actincorporated therein by reference, of the happening of or file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus 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 contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(k) 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 cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of such Registration Statement (and 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 which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter(s) of an underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(m) otherwise use its commercially reasonable best efforts to comply with cause all applicable rules and regulations shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the Commissionparticular class of Registrable Securities are at that time listed on such exchange prior to the effectiveness of such Registration Statement;
(n) permit any holder 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 a Holder submitting a Demand Notice or Take-Down Notice with respect to such offering, or the holders of a majority of the Registrable Securities who, being sold in its good faith judgment connection therewith (based on including those reasonably requested by the advice of counselmanaging underwriter(s), could reasonably be expected if any) to be deemed to be an underwriter expedite or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by , and including, whether or not an underwriting agreement is entered into and whether or not the registration statement is an underwritten registration, (i) making such representations and warranties to the Holders and the managing underwriter or agentunderwriter(s), if any, with respect to facilitate the timely preparation business of the Company and delivery of certificates representing securities to be sold under its material Subsidiaries, and the registration statement Registration Statement, Prospectus and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agentdocuments, if any, incorporated or such holders may request;
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, confirming the same if and when requested, (rii) cooperate with using its reasonable best efforts to furnish to the selling Holders opinions of outside counsel to the Company 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), addressed to each holder of Registrable Securities covered by the registration statement selling Holder and each underwriter or agent participating of the underwriters, if any, covering the matters customarily covered in the disposition of opinions requested in underwritten offerings and such Registrable Securities other matters as may be reasonably requested by such counsel and their respective counsel in connection with any filings required to be made with FINRA;
underwriters, (siii) if such registration includes an underwritten public offering, use using its commercially reasonable best efforts to obtain a “cold comfort letter comfort” letters and updates thereof from an independent registered public accounting firm with respect to the Parent’s Company (and, if necessary, any other independent certified public accountants of any material 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 has 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 applicable standards of the accounting profession) and each of the underwriters, if any, with such letters to be in customary form and covering such matters of the type customarily covered by in “cold comfort comfort” letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), connection with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.underwritt
Appears in 4 contracts
Sources: Registration Rights Agreement (Core & Main, Inc.), Registration Rights Agreement (Core & Main, Inc.), Registration Rights Agreement (Agilon Health, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and each such amendment and supplement thereto (in each case including all exhibits) and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request; provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such seller, the Parent and promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement prospectus supplemented or amendment to such prospectus amended so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Stock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller of Restricted Stock, use its best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, to such effect as reasonably may be requested by counsel for the underwriters, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters reasonably may request;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, reasonable access to all financial and other records, pertinent corporate and business documents and properties of the Parent Company, as shall be necessary to enable them to exercise their due diligence responsibilitysuch parties may reasonably request, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(li) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects cooperate with the Securities Actselling holders of Restricted Stock and the managing underwriters, is filed if any, to facilitate the timely preparation and delivery of certificates representing Restricted Stock to be sold, such certificates to be in accordance with such denominations and registered in such names as such holders or the Securities Act managing underwriters may request at least two business days prior to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby any sale of Restricted Stock; and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(nj) permit any holder of Registrable Securities whoRestricted Stock which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) included and to permit any other holder of Restricted Stock participating in the event registration to review such registration or comparable statement during its preparation. For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the issuance sale of all Restricted Stock covered thereby and 180 days after the effective date thereof. In connection with each registration hereunder, the sellers of Restricted Stock will furnish to the Company in writing such information requested by the Company with respect to themselves and the proposed distribution by them as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws and to make the registration statement correct, accurate and complete in all respects with respect to such sellers; provided, however, that this requirement shall not be deemed to limit any disclosure obligation arising out of any stop order suspending seller's relationship to the effectiveness Company if one of a registration statementsuch seller's agents or affiliates is an officer, director or control person of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionCompany. In addition, the Parent shall use its commercially reasonable efforts promptly to obtain sellers shall, if requested by the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by Company, execute such other governmental agencies or authorities agreements, which are reasonably satisfactory to them and which shall contain such provisions as may be necessary customary and reasonable in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by accomplish the registration statement and of the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate Restricted Stock. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 4 contracts
Sources: Registration Rights Agreement (Cogent Communications Group Inc), Registration Rights Agreement (Cogent Communications Group Inc), Registration Rights Agreement (Cogent Communications Group Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 2 or 3 to this Agreement, the Parent shall use its commercially all reasonable commercial efforts to effect the registration and of any shares of Registrable Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except prepare and promptly, and in connection with a Piggyback Registration, prepare in accordance with any event within 45 days after the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such requestrequest for registration has been delivered to the company, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially all reasonable commercial efforts to cause such registration statement to become effective, and remain effective for the period of the distribution contemplated thereby (determined as hereinafter provided) or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed requested to be fileda “shelf”, which documents shall be subject for as long as requested to the review and comment of such counsel)extent permitted by applicable law;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Stock covered by such registration statement;
(d) furnish use all reasonable commercial efforts to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Registrable Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or jurisdiction;
(iiie) subject itself use all reasonable commercial efforts to taxation in list the Registrable Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such jurisdiction)Registrable Stock not later than the effective date of such registration statement;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, and at the request of any such seller, the Parent promptly shall prepare, file with the Commission seller prepare and furnish to each such seller a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesStock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingthen existing;
(mh) otherwise if the offering is underwritten and at the request of any seller of Registrable Stock, use its commercially all reasonable commercial efforts to furnish on the date that Registrable Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with all applicable rules and regulations the requirements of the CommissionSecurities Act (except that such counsel need not express any opinion as to financial statements or financial or statistical data contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration as such underwriters or sellers reasonably may request;
(ni) permit any holder of Registrable Securities who, use all reasonable commercial efforts to cooperate with the sellers in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person disposition of the Parent Registrable Stock covered by such registration statement, including without limitation in the case of an underwritten offering causing key executives of the Company and its subsidiaries to participate under the direction of the managing underwriter in a “road show” scheduled by such managing underwriter in such locations and of such duration as in the judgment of such managing underwriter are appropriate for such underwritten offering;
(j) in connection with the preparation and filing of each registration statement registering Registrable Stock under the Securities Act, and before filing any such registration statement or any other document in connection therewith, give the participating holders and their underwriters, if any, and their respective counsel and accountants, the opportunity to participate in the preparation of such registration statement, each prospectus included therein or comparable statement filed with the Commission, each amendment thereof or supplement thereto and any related underwriting agreement or other document to require the insertion therein of material furnished to the Parent in writingbe filed, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event give each of the issuance aforementioned persons such access to its books and records, including all financial and other records, pertinent corporate documents and properties of any stop order suspending the effectiveness Company, and such opportunities to discuss the business of a registration statementthe Company with its officers, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement directors and employees and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to who have certified its financial statements as shall be necessary, in the opinion of such holders, underwriters, in customary form and covering such matters counsel or accountants, to conduct a reasonable investigation within the meaning of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;Securities Act; and
(tk) provide a legal opinion otherwise use all reasonable commercial efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the Parent’s outside counselCommission, dated and make available to its securities holders, as soon as reasonably practicable, an earning statement covering the period of at least 12 months after the effective date of such registration statement, which earning statement (andshall satisfy Section 11(a) of the Securities Act and any applicable regulations thereunder, if including Rule 158. For purposes of Sections 4(a) and 4(b) and of Section 2(d), the period of distribution of Registrable Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Registrable Stock in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Stock covered thereby and 120 days after the effective date thereof or in the case of a registration requested to be a “shelf”, for as long as requested to the extent permitted by applicable law. In connection with each registration hereunder, the sellers of Registrable Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration includes pursuant to Sections 2 or 3 covering an underwritten Public Offeringpublic offering, dated the date Company and each seller agree to enter into a written underwriting agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the closing under Company’s size and investment stature; provided, however, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriters shall also be made to and for the benefit of such sellers of Registrable Stock, (ii) no seller shall be required to make, and the Company shall ensure that no underwriter requires any seller to make, any representations and warranties, to or agreements with any underwriter in a registration effected pursuant to Sections 2 or 3 other than customary representations, warranties and agreements relating to such seller’s title to Registrable Stock and authority to enter into the underwriting agreement), with (iii) the liability of each seller of Registrable Stock respect of any indemnification, contribution or other obligation of such seller of Registrable Stock arising under such underwriting agreement (i) shall be limited to the losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, each amendment and supplement thereto, the prospectus included therein (including the any such preliminary prospectus) , final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and such other documents relating thereto in customary form and covering such matters of conformity with written information furnished to the type customarily covered Company by legal opinions or on behalf of such nature, which opinion seller of Registrable Stock expressly for inclusion therein and (iv) shall be addressed not in any event exceed an amount equal to the net proceeds to such seller of Registrable Stock (after deduction of all underwriters;
(u’ discounts and commissions) if from the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering disposition of the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay disposed of by such fee at seller of Registrable Stock pursuant to such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 4 contracts
Sources: Investor Rights Agreement (Edgar Online Inc), Investor Rights Agreement (Draper Fisher Jurvetson Fund VIII L P), Investor Rights Agreement (Bain Capital Venture Integral Investors, LLC)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 4.3, 4.4 or 4.5 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4.3, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities including executing an undertaking to file post-effective amendments and use commercially reasonable best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)distribution contemplated thereby;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) specified herein and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each underwriter such number of copies of the registration statement and each such amendment and supplement thereto (in each case including all exhibits) and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such registration statement;
(d) furnish use reasonable best efforts to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions sellers of the Registrable Securities owned by such seller (provided or, in the case of an underwritten public offering, the managing underwriter reasonably shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) jurisdiction, unless the Company is already subject itself to taxation service in any such jurisdiction);
(e) use reasonable best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) comply with all applicable rules and regulations under the Securities Act and Exchange Act;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such seller, the Parent and promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement prospectus supplemented or amendment to such prospectus amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(h) cause all such if the offering is underwritten and at the request of any seller of Registrable Securities, use reasonable best efforts to furnish on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters to such effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters, and (ii) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable Securities, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, reasonable access to all financial and other records, pertinent corporate and business documents and properties of the Parent Company, as shall be necessary to enable them to exercise their due diligence responsibilitysuch parties may reasonably request, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lj) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects cooperate with the selling holders of Registrable Securities Actand the managing underwriter, is filed if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, such certificates to be in accordance with such denominations and registered in such names as such holders or the Securities Act managing underwriter may request at least two (2) business days prior to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby any sale of Registrable Securities; and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(nk) permit any holder of Registrable Securities whowhich holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
. For purposes of this Agreement, the period of distribution of Registrable Securities in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Registrable Securities in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Securities covered thereby or one hundred and eighty (o180) days after the effective date thereof, provided, however, in the event of the issuance case of any stop order suspending registration of Registrable Securities on Form S-3 or a comparable or successor form which are intended to be offered on a continuous or delayed basis, such 180-day period shall be extended, if necessary, to keep the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause effective until all such Registrable Securities covered by such registration statement to be registered with are sold, provided that Rule 415, or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold any successor rule under the registration statement Securities Act, permits an offering on a continuous or delayed basis, and enable such securities provided further that applicable rules under the Securities Act governing the obligation to be file a post-effective amendment, permit, in such denominations and registered in such names as lieu of filing a post-effective amendment which (y) includes any prospectus required by Section 10(a)(3) of the managing underwriter, Securities Act or agent, if any, (z) reflects facts or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter events representing a material or agent participating fundamental change in the disposition of such Registrable Securities and their respective counsel information set forth in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters incorporation by reference of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is information required to be kept effectiveincluded in (y) and (z) above contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration statement. In connection with each registration hereunder, the sellers of Registrable Securities will furnish to the Company in writing such information requested by the Company with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with Federal and applicable state securities laws.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Paratek Pharmaceuticals Inc), Investor Rights Agreement (Paratek Pharmaceuticals Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period.
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any such sellerseller of Restricted Stock, use its best efforts to furnish on the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter date that Restricted Stock is delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange underwriters for at least two market makers to register as such with respect sale pursuant to such Registrable Securities with FINRA;
registration; (i) provide a transfer agent and registrar for all an opinion dated such Registrable Securities not later than the effective date of counsel representing the Company for the purposes of such registration statement;
(j) enter into registration, in form and perform such customary agreements (including underwriting agreements substance as is customarily given to underwriters in customary form) an underwritten public offering and take all such other actions as reasonably satisfactory to a majority in interest of the Applicable Approving Party or sellers of Restricted Stock requesting registration, addressed to the underwriters, if any, reasonably request in order and to expedite or facilitate the disposition sellers of Restricted Stock requesting registration, and (ii) a “comfort” letter dated as of such Registrable Securities (includingdate, without limitationfrom the independent certified public accountants of the Company, effecting in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a stock split or a combination majority in interest of shares the sellers of Restricted Stock requesting registration, addressed to the underwriters, if any, and preparing for and participating in such number to the sellers of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);Restricted Stock requesting registration; and
(kh) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l. For purposes of Section 7(a) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement and 7(b) and 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;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counselSection 4(c), could reasonably be expected to the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be an underwriter or a controlling Person deemed to extend until the earlier of the Parent to participate in sale of all Restricted Stock covered thereby and 120 days after the preparation effective date thereof. In connection with each registration hereunder, the sellers of such registration or comparable statement and to require the insertion therein of material furnished Restricted Stock will furnish to the Parent Company in writing, which in the reasonable judgment of writing such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictioninformation with respect to themselves, the Parent shall use its commercially reasonable efforts promptly to obtain Restricted Stock held by them and the withdrawal proposed method of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate securities as reasonably shall be necessary in order to assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use the Company and each seller agree to enter into, and perform its commercially reasonable efforts to obtain obligations under, a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 3 contracts
Sources: Investor Rights Agreement (Achillion Pharmaceuticals Inc), Investor Rights Agreement (Achillion Pharmaceuticals Inc), Investor Rights Agreement (Achillion Pharmaceuticals Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to registration required under this Agreement, the Parent Company shall use its commercially reasonable efforts to effect take the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:actions set forth below.
(ai) except The Company shall notify the Holders in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission writing promptly of any stop order suspending issued or threatened by the Commission or other suspension of effectiveness of the Resale Registration Statement and will take commercially reasonable actions necessary or appropriate to prevent the entry of such stop order or to remove it as soon as practicable if entered and will notify the Holders in writing promptly of the resolution of such situation.
(ii) The Company shall furnish to each Holder of Registrable Securities covered by the Resale Registration Statement filed pursuant to this Agreement (A) promptly after the same is prepared and publicly distributed, filed with the Commission, or received by the Company, one copy of the Resale Registration Statement and any registration statement amendment thereto, each prospectus and each amendment or supplement thereto, and, as promptly as practicable after the initiation date of effectiveness of the Resale Registration Statement or any proceedings for amendment thereto, a written notice stating that purposethe Resale Registration Statement or amendment thereto has been declared effective, and (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the prospectus included in such registration statement (including each preliminary prospectus)statement, each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as any such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;Holder. Such delivery of documents pursuant to (B) above shall be made by the Company within three (3) trading days of receipt of a request therefor from any Holder.
(eiii) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) The Company shall use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities under such other the securities or “blue sky sky” laws of such jurisdictions each State of the United States of America as any of the lead underwriter or Holders of the Applicable Approving Party Registrable Securities covered by a registration statement filed hereunder may reasonably requests request, and shall do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the Holders to consummate the disposition in such jurisdictions States of the Registrable Securities owned by such seller (the Holders; provided that the Parent Company shall not be required to (iA) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f5(c)(iii), (iiB) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);.
(giv) promptly The Company shall immediately notify the Holders in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event which comes to the Company’s attention if, as a result of which such event, the prospectus included in such registration statement the Resale Registration Statement, as then in effect, contains an any untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;, and the Company shall as soon as reasonably practicable prepare and furnish to each Holder and file with the Commission a supplement or amendment to such prospectus or registration statement or take such other action so that such prospectus or registration statement will no longer contain any 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.
(mv) otherwise use its commercially reasonable efforts The Company shall hold in confidence and not make any disclosure of information concerning the Holders provided to the Company pursuant to this Agreement unless (A) disclosure of such information is necessary to comply with all applicable rules federal or state securities laws, (B) disclosure of such information is necessary to avoid or correct a misstatement or omission in the Resale Registration Statement, (C) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (D) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement, or (E) the Holders consent to the form and regulations content of the Commission;any such disclosure.
(nvi) permit any holder of The Company shall provide a transfer agent and registrar for all Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or registered pursuant hereunder and a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement CUSIP number for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of all such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated each case not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated and shall instruct the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions transfer agent that upon sale of such nature, which opinion shall Registrable Securities that no legend need be addressed to placed on the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which certificate of such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering person who purchased the Registrable Securities at pursuant to the time an Automatic Shelf Resale Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Palm Inc), Registration Rights Agreement (Palm Inc), Registration Rights Agreement (Palm Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-l or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) become subject itself to taxation tax in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed (or, if the Common Stock is not yet listed or quoted, then on such exchange or quotation system as the holders holding two-thirds (66-2/3%) of the Restricted Stock and the Company determine);
(f) provide a transfer agent and registrar for all such Restricted Stock, not later than the effective date of such registration statement;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(h) if the offering is underwritten and at the request of any seller of Restricted Stock, use its best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, containing customary opinions requested by counsel for the Parent promptly shall prepareunderwriters and (ii) a letter dated such date from the independent public accountants retained by the Company, file addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the Commission applicable accounting requirements of the Securities Act, and furnish to each such seller a reasonable number of copies of a supplement or amendment to letter shall additionally cover such prospectus so that, other financial matters (including information as thereafter delivered to the purchasers period ending no more than five (5) business days prior to the date of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hletter) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement. The rights granted pursuant to this subsection (i) may not be assigned or otherwise conveyed by such person or by any subsequent transferee of any such rights without the written consent of the Company, which consent shall not be unreasonably withheld; provided that the Company may refuse such written consent if the proposed transferee is a competitor of the Company as determined by the Company’s Board of Directors; and provided further, that no such written consent shall be required if the transfer is made to a party who is not a competitor of the Company and who is a parent, subsidiary, Affiliate, partner or group member of such Person;
(lj) take advise each selling holder of Restricted Stock, 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 all reasonable actions efforts to ensure that prevent the issuance of any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act stop order or to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingobtain its withdrawal if such stop order should be issued;
(mk) otherwise use its commercially reasonable efforts cooperate with the selling holders of Restricted Stock and the managing underwriters, if any, to comply with all applicable rules facilitate the timely preparation and regulations delivery of certificates representing Restricted Stock to be sold, such certificates to be in such denominations and registered in such names as such holders or the Commission;managing underwriters may request at least two (2) business days prior to any sale of Restricted Stock; and
(nl) permit any holder of Registrable Securities whoRestricted Stock which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o, subject to review by the Company and its counsel after consultation with such holder. For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the event distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the issuance sale of any stop order suspending all Restricted Stock covered thereby and 120 days after the effectiveness of a effective date thereof. In connection with each registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionhereunder, the Parent sellers of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to the underwriters, managing underwriter in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Demandware Inc), Investor Rights Agreement (Demandware Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 2 hereof to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) effective in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)expeditious manner;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement continuously effective for a period ending when all of during the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period Registration Statement in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to each seller of Registrable Securities thereunder and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents ) as such seller persons reasonably may reasonably request in order to facilitate the intended disposition of the Registrable Securities owned covered by such sellerRegistration Statement;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts (i) to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such Registration Statement under such other the securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or sellers of Registrable Securities or, in the Applicable Approving Party case of an underwritten public offering, the managing underwriter, reasonably requests shall request, (ii) to prepare and do any file in those jurisdictions such amendments (including post-effective amendments) and all supplements, and take such other acts and things which actions, as may be reasonably necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such seller (provided jurisdictions, provided, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtainedsuch Registration Statement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains an Registration Statement, as then in effect, includes any untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, misleading in light of the circumstances under which they were made, not misleadingthen existing and promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;
(mg) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder promptly notify each seller of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance by the Commission of any stop order suspending the effectiveness of a registration statement, the Registration Statement or the initiation of any order suspending or preventing proceedings for that purpose and make every reasonable effort to prevent the use issuance of any related prospectus or suspending the qualification of stop order and, if any Common Stock included in such registration statement for sale in any jurisdictionstop order is issued, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such orderlifting thereof at the earliest possible time;
(ph) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company's size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(i) if the offering is an underwritten offering, at the request of any seller of Registrable Securities, use its commercially reasonable efforts to cause furnish to such seller on the date that Registrable Securities covered are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration statement to be registered with or approved by as such other governmental agencies or authorities as underwriters reasonably may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securitiesrequest;
(qj) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing securities the Registrable Securities to be sold under pursuant to the registration statement Registration Statement and to enable such securities certificates to be in such denominations and registered in such names as the managing underwriter, Investors or agent, if any, or such holders any underwriters may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(wk) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at take all other reasonable actions necessary to expedite and facilitate the end registration of the third year, refile a new Automatic Shelf Registrable Securities pursuant to the Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Agfeed Industries, Inc), Registration Rights Agreement (Agfeed Industries, Inc), Registration Rights Agreement (Agfeed Industries, Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders LLC is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Agreement to effect the registration and of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleLLC shall:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act Prepare and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities Shares and use commercially reasonable its best efforts to cause such registration statement that Registration Statement to become effective, or (2) in and remain effective until the case an effective Resale Shelf Registration Statement is on file with completion of the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)distribution;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) Promptly prepare and file with the Commission such any amendments and supplements to such registration statement the Registration Statement and the prospectus used included in connection therewith the Registration Statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act orRegistration Statement effective, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(dc) Promptly furnish to each seller of Registrable Securities thereunder selling Investor such number reasonable numbers of copies of such registration statementthe Registration Statement, each amendment and supplement thereto, the prospectus included in such registration statement (prospectus, including each a preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as such seller the selling Investor may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by the selling Investor;
(d) Use commercially reasonable efforts to register or qualify the Registrable Shares covered by the Registration Statement under the securities or Blue Sky laws of such sellerstates as the selling Investors shall reasonably request, and do any and all other acts and things that may be necessary or desirable to enable the selling Investors to consummate the public sale or other disposition in such states of the Registrable Shares owned by the selling Investor; provided, however, that the LLC shall not be required in connection with this Section 14.04(d) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction where it is not conducting business;
(e) during In the event of any period underwritten public offering, enter into and perform its obligations under an underwriting agreement, in which usual and customary form, with the managing underwriter(s) of such offering. Each Investor participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(f) Promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, after it shall receive notice thereof, of the time when such Registration Statement has become effective or such supplement to any prospectus forming a part of such Registration Statement has been filed;
(g) Promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(h) Prepare and promptly file with the Commission, and promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of such amendment or supplement to such Registration Statement or prospectus, as then in effect, as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, promptly file all documents required any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to be filed with state any material fact necessary to make the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) statements therein not misleading in light of the Securities Actcircumstances in which they were made;
(fi) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Promptly notify each selling Investor of Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned Shares covered by such seller (provided that the Parent 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 Section 4(f)Registration Statement, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing and each seller of such Registrable Securities (i) underwriter, if any, after it receives shall receive notice or obtain knowledge thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, issuance of any request stop order by the Commission for suspending the amendment or supplementing effectiveness of such registration statement Registration Statement or prospectus the initiation or threatening of any proceeding for additional information, that purpose and promptly use all reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(iiij) at At any time when a prospectus relating thereto Registration Statement is required to be delivered effective under the Securities Act, promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of the happening of any event as a result of which the prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request light of any such seller, the Parent circumstances then existing. The LLC shall promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall that it will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(hk) cause Use commercially reasonable efforts to furnish, on the date that such Registrable Shares are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the LLC for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to each selling Investor of Registrable Shares covered by such Registration Statement and (ii) a letter dated as of such date, from the independent certified public accountants of the LLC, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters and to each selling Investor of Registrable Shares covered by such Registration Statement;
(l) If the LLC has delivered preliminary or final prospectuses to the selling Investors and after having done so the prospectus is amended to comply with the requirements of the Securities Act, the LLC shall promptly notify the selling Investors and, if requested, the selling Investors shall immediately cease making offers of Registrable Shares and return all prospectuses to the LLC. The LLC shall promptly provide the selling Investors with revised prospectuses and, following receipt of the revised prospectuses, the selling Investors shall be free to resume making offers of the Registrable Shares;
(m) Cause all such Registrable Securities Shares to be listed on or included in each securities exchange or quotation system on which similar securities issued by the Parent LLC are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(in) provide Provide a transfer agent and registrar for all Registrable Shares registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities Shares, in each case not later than the effective date of such registration statementregistration;
(jo) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) Promptly make available for inspection by any seller of Registrable Securitiesthe selling Investors, any underwriter underwriter(s) participating in any disposition pursuant to such registration statement statement, and any attorney, attorney or accountant or other agent retained by any such seller underwriter or underwriterselected by the selling Investors, all financial and other records, pertinent corporate and business documents documents, and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityLLC, and cause the ParentLLC’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinagent, in light each case, as necessary or advisable to verify the accuracy of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included information in such registration statement for sale and to conduct appropriate due diligence in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;connection therewith; and
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such Ensure that, at all times after any registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable covering a public offering of securities of the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold LLC under the registration statement and enable such securities to be in such denominations and registered in such names as Securities Act shall have become effective, its ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy shall provide that the managing underwriter, or agent, if any, or such holders LLC’s directors may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain implement a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters trading program under Rule 10b5-1 of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveExchange Act.
Appears in 3 contracts
Sources: Operating Agreement (Arvinas Holding Company, LLC), Operating Agreement (Arvinas Holding Company, LLC), Operating Agreement (Arvinas Holding Company, LLC)
Registration Procedures. In connection with the Registration to be effected registration obligations of the Company pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant in accordance with Sections 2 and 3 hereof (and subject to this AgreementSections 2 and 3 hereof), the Parent Company shall use its commercially reasonable efforts to effect the such registration and to permit the sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:possible (but subject to Sections 2 and 3 hereof):
(a) except in connection prepare and file with the SEC a Piggyback Registration, prepare Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, within 60 days following receipt of such request, file with subject to the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, Company's right to terminate or abandon a registration statementpursuant to Section 3(c) hereof, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement Registration Statement to become effective, or effective and remain effective as provided herein;
(2b) in the case an effective Resale Shelf Registration Statement is on prepare and file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant SEC such amendments (including post-effective amendments) to such Resale Shelf Registration Statement Statement, and such supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such Registration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that at least five (5) Business Days 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 before filing a registration statement Registration Statement or prospectus Prospectus, or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act), the Parent Company shall furnish to the Holders of Registrable Shares covered by such Registration Statement and their counsel selected by the Applicable Approving Party for review and comment, copies of all such documents proposed required to be filed, which documents shall be subject to the review and comment of such counsel);
(bc) notify each holder the Holders of any Registrable Securities Shares covered by such Registration Statement promptly and (if requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (Aiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of any registration statement such Registration Statement or the initiation of any proceedings for that purpose, (Biv) of the receipt by the Parent or its counsel 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 in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (Cv) of the effectiveness happening of each registration any event that requires the making of any changes in such Registration Statement, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements of a material fact or omit to such registration statement and the prospectus used in connection therewith as may state any material fact required to be stated therein or necessary to keep such registration statement effective for a period ending when all of make the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but statements therein not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;misleading:
(d) 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;
(e) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each seller counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of Registrable Securities thereunder 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 such registration statementthe preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment and or supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned Shares of such Holder covered by such seller;
(e) during any period Registration Statement in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed conformity with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) requirements of the Securities Act;
(f) prior to any public offering of Registrable Shares covered by such Registration Statement, use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Shares for offer and sale under such other the securities or blue sky Blue Sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Holders of such Registrable Shares shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition request in such jurisdictions of the Registrable Securities owned by such seller (provided writing; provided, however, that the Parent Company shall not in no event be required to (i) qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it would is not otherwise be required at the time so qualified or to qualify but for this Section 4(f), (ii) execute or file a general consent to general service of process in any such jurisdiction where it has not theretofore done so or (iii) to take any action that would subject itself it to general service of process or taxation in any such jurisdiction)jurisdiction where it is not then subject;
(g) promptly notify in writing each seller upon the occurrence of such Registrable Securities (iany event contemplated by paragraph 5(c)(v) after it receives notice thereofabove, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to such Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Act, of the happening of incorporated therein by reference and file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesShares being sold thereunder (including upon the termination of any Delay Period), such prospectus shall Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities required to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party stated therein or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(ph) use its commercially reasonable efforts to cause such all Registrable Securities Shares covered by such registration statement Registration Statement to be registered 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;
(i) on or before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with or approved printed certificates for the Registrable Shares covered by such Registration Statement, which are in a form eligible for deposit with The Depository Trust Company;
(j) if such offering is an underwritten offering, make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering pursuant to such Registration Statement, and any attorney, accountant or other governmental agencies agent retained by any such Holder or authorities underwriter (collectively, the "Inspectors"), all financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and affiliates (collectively, the "Records"), as may shall be reasonably necessary to enable them to exercise their due diligence responsibilities; provided, however, that the sellers thereof Records that the Company determines, in good faith, to consummate be confidential and which it notifies the Inspectors in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company (which shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus) or 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 further, 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 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 disclosure of such Records; and
(k) 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 Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement Shares, and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriterconnection, or agent, if any, or such holders may request;
(ri) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a 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 as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort letter comfort" letters and updates thereof from the Parent’s 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 such 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 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. The Company may require each Holder of Registrable Shares covered by cold comfort letters 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 underwriters 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 happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, that such Holder shall forthwith discontinue disposition of any Registrable 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(g) 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 registration reasonably request;
Prospectus (tsuch period during which disposition is discontinued being an "Interruption Period") provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offeringrequested by the Company, dated the date Holder shall deliver to the Company (at the expense of the closing under Company) all copies then in its possession, other than permanent file copies then in such holder's possession, of the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and Prospectus covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities Shares at the time an Automatic Shelf of receipt of such request. Each Holder of Registrable Shares covered by a Registration Statement is filed, pay further agrees not to utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the offering of such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveShares.
Appears in 3 contracts
Sources: Registration Rights Agreement (Time Warner Inc/), Merger Agreement (Turner Broadcasting System Inc), Registration Rights Agreement (Turner Broadcasting System Inc)
Registration Procedures. In If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company shall, as expeditiously as possible (but, in any event, within 75 days after a Demand Registration Request in the case of Section 2.4(a) below) and, to the fullest extent permitted by applicable law, in connection with the Registration to be effected pursuant to of the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementand, where applicable, a takedown off of a shelf registration statement:
(a) prepare and file all filings with the Parent shall use its commercially reasonable efforts to effect SEC and FINRA required for the consummation of the offering, including preparing and filing with the SEC a registration and statement on an appropriate registration form of the sale SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(aii) except in connection with a Piggyback Registrationshall, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such request requires a subsequent Resale Shelf Registration Statement, a registration statementstatement 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 all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and the Company shall use commercially its reasonable best efforts to cause such registration statement to become effective, effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (A) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (2B) a period of 90 days in the case of an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities underwritten offering effected pursuant to such Resale Shelf Registration Statement a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration statement (provided provided, however, that at least five (5) Business Days as far in advance as reasonably practicable before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Parent shall Company will furnish to one counsel for the Piggyback Holders participating in the planned offering (selected by the Applicable Approving Party Initiating Holder(s), or if there are no Initiating Holder(s), by the Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents shall will be subject to the reasonable review and reasonable comment of such counselcounsel (provided that the Company shall be under no obligation to make any changes suggested by the Participating Holders), and the Company shall not file any registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Initiating Holders or the underwriters, if any, shall reasonably object);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements 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 a the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealerSection 2.4(a) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (and, in connection with any shelf registration statement, file one or more prospectus supplements pursuant to Rule 424 under the Securities Act covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(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 furnish, without charge, to each seller Participating Holder and each underwriter, if any, of Registrable Securities thereunder the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement theretothereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each Free-Writing Prospectus free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and such other documents documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerseller (the Company hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such registration statement under such other securities or state “blue sky sky” laws of such jurisdictions as the lead underwriter any sellers of Registrable Securities or the Applicable Approving Party any managing underwriter, if any, shall reasonably requests request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller sellers or underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such seller jurisdictions (provided including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Parent shall not Company be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (e), be required to qualify but for this Section 4(f)be so qualified, (ii) to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gf) promptly notify in writing each seller of such Registrable Securities Participating Holder and each managing underwriter, if any: (i) after it receives notice thereofwhen the registration statement, of any pre-effective amendment, the date and time when such registration statement and each prospectus or any prospectus supplement related thereto, any post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a the registration statement or any free writing prospectus has been filed and and, with respect to the registration statement or any post-effective amendment, when any registration or qualification the same has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, effective; (ii) after receipt thereof, of any request by the Commission SEC or state securities authority for amendments or supplements to the amendment or supplementing of such registration statement or the prospectus related thereto or for additional information, and ; (iii) at of the issuance by the SEC of any time when a prospectus relating thereto is required stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to be delivered the suspension of the qualification of any Registrable Securities for sale under the Securities Act, securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the happening existence of any event as a result fact of which the prospectus included Company becomes aware which results in such the registration statement contains 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 omits any omitting to state a material fact required to be stated therein or necessary to make the statements any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, at if the request of any such sellernotification relates to an event described in clause (v), the Parent Company shall promptly shall prepare, file with the Commission prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a supplement prospectus supplemented or amendment to such prospectus amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(g) 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 45 days, or 90 days if it is a fiscal year, after the end of such 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(h) (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to arrange facilitate the managing underwriter’s arranging for the registration of at least two market makers to register as such with respect to such Registrable Securities shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(i) cause its senior management and officers to participate in, and to otherwise facilitate and cooperate with the preparation of the registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions, due diligence sessions and rating agency presentations) taking into account the Company’s reasonable business needs;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(jk) enter into and perform such customary agreements (including including, if applicable, an underwriting agreements in customary formagreement) and take all such other actions as the Applicable Approving Party Initiating Holder(s) or the underwriters, if any, Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (includingit being understood that the Participating Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, without limitationat their option, effecting a stock split or a combination require that the Company make to and for the benefit of shares such Participating Holders the representations, warranties and preparing covenants of the Company which are being made to and for and participating in the benefit of such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably requestunderwriters);
(kl) use its reasonable best efforts (i) to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and comfort letters (including, in the case of such comfort letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Initiating Holder(s) and the Majority Participating Holders, and (ii) furnish to each Participating Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(m) deliver promptly to counsel for each Participating Holder and to each managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any seller of Registrable Securitiesunderwriter, 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 seller or underwriter, all pertinent financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause all of the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such sellercounsel for a Participating Holder, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement;
(ln) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of prevent the issuance or obtain the prompt withdrawal of any stop order suspending the effectiveness of a the registration statement, or the prompt lifting of any order suspending or preventing the use suspension of any related prospectus or suspending the qualification of any Common Stock included in such registration statement of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(o) provide a CUSIP number for all Registrable Securities, not later than the Parent shall use its commercially reasonable efforts promptly to obtain effective date of the withdrawal of such orderregistration statement;
(p) use its commercially reasonable best efforts to cause such make available its senior management, employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the reasonable needs of the Company’s businesses and the requirements of the marketing process) in marketing the 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 sellers thereof to consummate the disposition of such Registrable Securitiesin any underwritten offering;
(q) cooperate with promptly prior to the holders filing of Registrable Securities covered any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter or agentunderwriter, if any, to facilitate and make the timely preparation Company’s representatives reasonably available for discussion of such document and delivery of certificates representing securities to be sold under the registration statement and enable make such securities to be changes in such denominations and registered in such names document concerning the Participating Holders prior to the filing thereof as counsel for the managing underwriter, Participating Holders or agent, if any, or such holders underwriters may reasonably request;
(r) cooperate with furnish to counsel for each holder Participating Holder and to each managing underwriter, without charge, at least one signed copy of Registrable Securities covered by the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each underwriter or agent participating in preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the disposition of such Registrable Securities Act and their respective counsel all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection with any filings required to be made with FINRAtherewith;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from cooperate with the Parent’s independent public accountants Participating Holders and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (andmanaging underwriter, if such registration includes an underwritten Public Offeringany, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.t
Appears in 3 contracts
Sources: Registration Rights Agreement (Royalty Pharma PLC), Registration Rights Agreement (Royalty Pharma PLC), Registration Rights Agreement (Royalty Pharma PLC)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested request that the offer and sale of any Registrable Securities be registered pursuant to this Agreementunder the Securities Act, the Parent Company shall use its commercially reasonable best efforts to effect affect the registration of the offer and the sale of such Registrable Securities under the Securities Act in accordance with the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously soon as reasonably possiblepracticable and as applicable:
(a) except in connection with a Piggyback Registrationsubject to Section 2(a), Section 2(b) and Section 2(c), prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a Registration Statement covering such Registrable Securities and use its best efforts to cause such Registration Statement to be declared effective;
(1b) in the case of a Long-Form Registration or a Short-Form Registration, prepare and file with the Commission such request requires a subsequent Resale Shelf Registration Statementamendments, a registration statement, and all post-effective amendments and supplements thereto to such Registration Statement and related prospectuses the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 180 days, or if earlier, until all of such Registrable Securities have been disposed of and to comply with applicable securities laws, the provisions of the Securities Act with respect to the disposition of such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file accordance with the Commission and effective, an applicable prospectus or prospectus supplement for the resale intended methods of Registrable Securities pursuant to disposition set forth in such Resale Shelf Registration Statement Statement;
(provided that at least five (5c) Business Days within a reasonable time before filing a registration statement such Registration Statement, Prospectus or prospectus or any amendments or supplements theretothereto with the Commission, the Parent shall furnish to one counsel selected by the Applicable Approving Party holders of a majority of such Registrable Securities copies of all such documents proposed to be filed, which documents shall be subject to the review review, comment and comment approval of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) notify each selling holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with the Commission;
(e) furnish to each seller selling holder of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectusProspectus) and any supplement thereto (in each case including all exhibits and documents incorporated by reference therein), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided holders; provided, that the Parent Company shall not be required to (i) qualify generally to do business business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to qualify do so but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction5(f);
(g) promptly notify in writing each seller selling holder of such Registrable Securities (i) after it receives notice thereofSecurities, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which that would cause the prospectus Prospectus included in such registration statement contains Registration Statement to contain an untrue statement of a material fact or omits omit any fact necessary in order to make the statements therein made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such sellerholder, the Parent promptly Company shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of prepare a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mh) make available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its best efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed, on a national securities exchange selected by the holders of a majority of such Registrable Securities;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities));
(l) otherwise use its commercially reasonable efforts best to comply with all applicable rules and regulations of the CommissionCommission and make available to its stockholders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto; and
(m) furnish to each selling holder of Registrable Securities and each underwriter, if any, with (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of the Company’s counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its best efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(o) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(p) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities whowhich holder, in its good faith judgment (based on the advice of counsel)sole and exclusive judgment, could reasonably be expected to might be deemed to be an underwriter or a “controlling Person person” (within the meaning of Section 15 of the Parent Securities Act and Section 20 of the Exchange Act) (a “Controlling Person”) of the Company, to participate in the preparation of such registration or comparable statement Registration Statement and to require the insertion therein of material language, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(qr) cooperate with the holders of the Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities the Registrable Securities to be sold under the registration statement pursuant to such Registration Statement or Rule 144 free of any restrictive legends and enable representing such securities to be in such denominations number of shares of Common Stock and registered in such names as the managing underwriter, or agent, if any, or such holders of the Registrable Securities may request;
(r) cooperate with each holder reasonably request a reasonable period of time prior to sales of Registrable Securities covered by pursuant to such Registration Statement or Rule 144; provided, that the registration statement and each underwriter or agent participating in Company may satisfy its obligations hereunder without issuing physical stock certificates through the disposition use of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRAThe Depository Trust Company’s Direct Registration System (the “DTCDRS”);
(s) if not later than the effective date of such registration includes an underwritten public offeringRegistration 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 its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably requestDTCDRS;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing take no direct or indirect action prohibited by Regulation M under the underwriting agreement)Exchange Act; provided, with respect that, to the registration statement, each amendment and supplement theretoextent that any prohibition is applicable to the Company, the prospectus included therein (including the preliminary prospectus) and Company will take all reasonable action to make any such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;prohibition inapplicable; and
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, otherwise use its commercially reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during take all other steps necessary to effect the period during which registration of such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivecontemplated hereby.
Appears in 3 contracts
Sources: Registration Rights Agreement (Neuraxis, INC), Registration Rights Agreement (Neuraxis, INC), Registration Rights Agreement (Neuraxis, INC)
Registration Procedures. In connection with If and when the Registration Company is required to be effected pursuant to effect any registration under the Resale Shelf Registration StatementSecurities Act as provided in Sections 2(a), and whenever the holders 3(a) or 4 of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case requisite Registration Statement to effect such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)limitations contained herein;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period ending when all and to comply with the provisions of the securities Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such registration statement Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods method of distribution by the sellers thereof disposition set forth in such registration statement Registration Statement, subject to the limitations contained herein;
(but not c) (i) before filing a Registration Statement or Prospectus or any amendments or supplements thereto, at the Company’s expense, furnish to the Holders whose securities are covered by the Registration Statement copies of all such documents, other than documents that are incorporated by reference, proposed to be filed and such other documents reasonably requested by such Holders (which may be furnished by email), and afford Counsel to the Holders a reasonable opportunity to review and comment on such documents; and (ii) in any event before connection with the expiration preparation and filing of any longer period required under each such Registration Statement pursuant to this Agreement, (A) upon reasonable advance notice to the Securities Act orCompany, if give each of the foregoing such registration statement relates reasonable access to an underwritten Public Offeringall financial and other records, such longer period corporate documents and properties of the Company as shall be necessary, in the reasonable opinion of counsel to such Holders and such underwriters, to conduct a reasonable due diligence investigation for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions purposes of the Securities Act with respect Act, and (B) upon reasonable advance notice to the disposition Company and during normal business hours, provide such reasonable opportunities to discuss the business of all securities covered by the Company with its officers, directors, employees and the independent public accountants who have certified its financial statements as shall be necessary, in the reasonable opinion of such registration statement during counsel to such period in accordance with Holders and such underwriters, to conduct a reasonable due diligence investigation for purposes of the intended methods of disposition by the sellers thereof set forth in such registration statementSecurities Act;
(d) notify each selling Holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;
(e) furnish to each seller selling Holder of Registrable Securities thereunder Securities, and the managing underwriters, without charge, such number of copies of such registration statementthe applicable Registration Statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), each Free-Writing Prospectus all exhibits and other documents filed therewith and such other documents as such seller or such managing underwriters may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during , and upon request, a copy of any period in which a prospectus is required and all transmittal letters or other correspondence to be delivered under or received from, the Securities Act, promptly file all documents required Commission or any other governmental authority relating to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actsuch offer;
(f) use its commercially reasonable efforts to register, (i) register or qualify or secure an exemption from registration with respect to such all Registrable Securities and other securities, if any, covered by such Registration Statement under such other securities or blue sky laws of such states or other jurisdictions of the United States of America as the lead underwriter Holders covered by such Registration Statement shall reasonably request in writing, (ii) keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such Registration Statement remains in effect and do (iii) take any and all other acts and things which action that may be reasonably necessary or reasonably advisable to enable such seller Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such seller (provided Holders, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f)subsection (f) be obligated to be so qualified, (ii) to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify cause all Registrable Securities included in writing each seller such Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as necessary upon the opinion of counsel to the Company or Counsel to the Holders of Registrable Securities included in such Registration Statement to enable such Holder or Holders thereof to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(h) obtain and, if obtained, furnish to each Holder that is named as an underwriter in the offering and each other underwriter thereof, a signed
(A) opinion of counsel for the Company, dated the date of the closing under the underwriting agreement and addressed to the underwriters, reasonably satisfactory (based on the customary form and substance of opinions of issuers’ counsel customarily given in such an offering) in form and substance to such Holder and such underwriters, if any, and
(B) “cold comfort” letter, dated the Effective Date of such Registration Statement (and, if such registration is an Underwritten Offering, dated the date of the closing under the underwriting agreement and addressed to the underwriters) and signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of “cold comfort” letters of issuers’ independent public accountant customarily given in such an offering) in form and substance to such Holder and such underwriters, if any, in each case, covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to underwriters in such types of offerings of securities;
(i) after it receives notice thereofnotify each Holder of Registrable Securities included in such Registration Statement and other securities covered by such Registration Statement, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedif any, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus Prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, andand for which the Company chooses to suspend the use of the Registration Statement and Prospectus in accordance with the terms of this Agreement, and at the written request of any such sellerHolder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain an untrue statement of a material fact Prospectus, as supplemented or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectusamended, shall not contain any 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;
(mj) otherwise notify the Holders of Registrable Securities included in such Registration Statement and other securities covered by such Registration Statement promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(k) advise the Holders of Registrable Securities included in such Registration Statement and other securities covered by such Registration Statement, promptly after it shall receive notice or obtain knowledge thereof and promptly use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement relating to the Registrable Securities at the earliest practicable moment;
(l) otherwise comply with all applicable rules and regulations of the CommissionCommission and any other governmental agency or authority having jurisdiction over the offering, and make available to its stockholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first (1st) full calendar month after the Effective Date of such Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158, and furnish to each Holder and to the managing underwriter, if any, at least ten (10) days prior to the filing thereof (or such shorter time period reasonably necessary in light of applicable legal requirements) a copy of any amendment or supplement to such Registration Statement or Prospectus;
(m) cause all Registrable Securities included in a Registration Statement to be listed on a national securities exchange on which similar securities issued by the Company are then listed, if the listing of such Registrable Securities is then permitted under the rules of such exchange;
(n) permit any holder of provide and cause to be maintained a transfer agent and registrar for the Registrable Securities who, included in its good faith judgment (based on a Registration Statement no later than the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be includedEffective Date thereof;
(o) enter into such agreements (including an underwriting agreement in customary form) and take such other actions as the event Holders beneficially owning a majority of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale a Registration Statement or the underwriters, if any, shall reasonably request in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly order to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with expedite or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities, including customary indemnification; and provide reasonable cooperation, including causing appropriate officers to attend and participate in “road shows” and other information meetings organized by the underwriters, if any, as reasonably requested; provided, that the Company shall have no obligation to participate in more than one (1) “road show” in any six (6)-month period and such participation shall not unreasonably interfere with the business operations of the Company;
(p) if requested by the managing underwriter(s) or the Holders beneficially owning a majority of the Registrable Securities being sold in connection with an Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information relating to the plan of distribution for such Registrable Securities provided to the Company in writing by the managing underwriters and the Holders of a majority of the Registrable Securities being sold and that is required to be included therein relating to the plan of distribution with respect to such Registrable Securities, including without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering, and make any required filings with respect to such information relating to the plan of distribution as soon as practicable after notified of the information;
(q) cooperate with the holders Holders of Registrable Securities covered by the registration statement included in a Registration Statement and the managing underwriter or agentunderwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under the registration statement and not bearing any restrictive legends, and enable such securities Registrable Securities to be in such denominations amounts and registered in such names as the managing underwriterunderwriters, or agentor, if anynone, or such holders the Holders beneficially owning a majority of the Registrable Securities being offered for sale, may request;reasonably request at least three (3) Business Days prior to any sale of Registrable Securities; and
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, otherwise use its commercially reasonable efforts to obtain a cold comfort letter from take all other steps necessary to effect the Parent’s independent public accountants and addressed registration of such Registrable Securities contemplated hereby. In addition, at least ten (10) Business Days prior to the underwritersfirst anticipated filing date of a Registration Statement for any registration under this Agreement, the Company will notify each Holder of the information the Company requires from that Holder, including any update to or confirmation of the information contained in the Selling Holder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in customary form any event, within five (5) Business Days prior to the applicable anticipated filing date. Each Holder further agrees that it shall not be entitled to be named as a selling securityholder in the Registration Statement or use the Prospectus for offers and covering resales of Registrable Securities at any time, unless such matters of Holder has returned to the type customarily covered by cold comfort letters Company a completed and signed Selling Holder Questionnaire and a response to any requests for further information as described in the previous sentence and, if an Underwritten Offering, entered into an underwriting agreement with the underwriters in accordance with Section 4(b) and Section 9. If a Holder of Registrable Securities returns a Selling Holder Questionnaire or a request for further information, in either case, after its respective deadline, the Company shall be permitted to exclude such registration reasonably request;
(t) provide Holder from being a legal opinion selling security holder in the Registration Statement or any pre-effective or post-effective amendment thereto. Each Holder acknowledges and agrees that the information in the Selling Holder Questionnaire or request for further information as described in this Section 7 will be used by the Company in the preparation of the Parent’s outside counsel, dated Registration Statement and hereby consents to the effective date inclusion of such registration statement (and, if such registration includes an underwritten Public Offering, dated information in the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Vantage Drilling International), Registration Rights Agreement
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 3, 4 or 5 to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and of any Registrable Shares under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possiblepracticable:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 3, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use its commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Shares covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Shares and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Shares covered by such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register or qualify or secure an exemption from the Registrable Shares covered by such registration with respect to such Registrable Securities statement under such other the securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Registrable Shares or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or jurisdiction;
(iiie) subject itself use its commercially reasonable efforts to taxation in list the Registrable Shares covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such jurisdiction)Registrable Shares, not later than the effective date of such registration statement;
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Shares and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(h) if the offering is underwritten and at the request of any seller of Registrable Shares, use its commercially reasonable efforts to furnish on the date that Registrable Shares are delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Parent promptly shall prepareSecurities Act and that (A) to the commercially reasonable knowledge of such counsel, file no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the Commission requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements contained therein) and furnish (C) to each such other matters as reasonably may be requested by counsel for the underwriters or by such seller or its counsel and (ii) a reasonable number of copies of a supplement or amendment letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such prospectus so seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as thereafter delivered to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the purchasers period ending no more than five business days prior to the date of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hletter) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesShares, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement. The rights granted pursuant to this subsection (i) may not be assigned or otherwise conveyed by such person or by any subsequent transferee of any such rights without the written consent of the Company, which consent shall not be unreasonably withheld; provided that the Company may refuse such written consent if the proposed transferee is a competitor of the Company as determined by the Company's Board of Directors; and provided further, that no such written consent shall be required if the transfer is made to a party who is not a competitor of the Company and who is a parent, subsidiary, affiliate, partner or group member of such person;
(lj) take advise each selling holder of Registrable Shares, 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 all reasonable actions efforts to ensure that prevent the issuance of any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act stop order or to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingobtain its withdrawal if such stop order should be issued;
(mk) otherwise use its commercially reasonable efforts cooperate with the selling holders of Registrable Shares and the managing underwriters, if any, to comply with all applicable rules facilitate the timely preparation and regulations delivery of certificates representing Registrable Shares to be sold, such certificates to be in such denominations and registered in such names as such holders or the Commission;managing underwriters may request at least two business days prior to any sale of Registrable Shares; and
(nl) permit any holder of Registrable Securities whoShares which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o, subject to review by the Company and its counsel after consultation with such holder. For purposes of Section 6(a) and 6(b) and of Section 3(c), the period of distribution of Registrable Shares in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the event distribution of all securities purchased by it, and the period of distribution of Registrable Shares in any other registration shall be deemed to extend until the earlier of the issuance sale of any stop order suspending all Registrable Shares covered thereby and 90 days after the effectiveness of a effective date thereof. In connection with each registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionhereunder, the Parent sellers of Registrable Shares will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 3, 4 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;
(s) if such registration includes 5 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 3 contracts
Sources: Registration Rights Agreement (Oncure Medical Corp), Registration Rights Agreement (Deshmukh Abhijit), Registration Rights Agreement (Oncure Medical Corp)
Registration Procedures. In connection with the Registration to be effected pursuant Subject to the Resale Shelf Registration Statementother provisions of this Agreement including without limitation the provisions of Section 3, and whenever the holders of Registrable Securities have a Holder has requested that any Registrable Securities be registered in connection with a Piggyback Registration pursuant to this Agreement, the Parent shall Company will use its commercially reasonable efforts to effect the registration and facilitate the sale and distribution of all such Registrable Securities specified in such registration request in accordance with the intended method of disposition thereof, thereof and pursuant thereto the Parent shall Company will as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, a. prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, SEC a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to statement which includes such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) effective and to comply as to form in the case an effective Resale Shelf Registration Statement is on file all material respects with the Commission requirements of the applicable form and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected include all financial statements required by the Applicable Approving Party copies of all such documents proposed SEC to be filed, which documents shall be subject to the review and comment of such counsel)filed therewith;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) b. prepare and file with the Commission SEC such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for a the period ending when all of the securities covered required by such registration statement have been disposed of in accordance with the intended methods method of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act ordisposition, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement, provided, however, that the Company shall not be required to file, cause to become effective or maintain the effectiveness of any registration statement that contemplates a distribution of securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act;
(d) c. furnish to each seller of Holder, who is selling Registrable Securities thereunder Securities, without charge, such number of copies of such registration statement, each amendment, post-effective amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus ) and such other documents as such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerhim;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) d. use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Investor reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller the Holders (provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)subparagraph, (ii) subject itself to taxation in any such jurisdiction, (iii) consent to general service of process in any such jurisdiction (unless the Company is subject to service in such jurisdiction and except as may be required by the Securities Act), or (iiiiv) subject itself qualify such Registrable Securities in a given jurisdiction where expressions of investment intent are not sufficient in such jurisdiction to taxation reasonably justify the expense of qualification in any that jurisdiction or where such qualification would require the Company to register as a broker or dealer in such jurisdiction);
(g) e. promptly notify in writing each seller of such any Holder who is selling Registrable Securities (i) after it receives notice thereofSecurities, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto to the 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 such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) f. cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed and, if not so listed, and to be listed qualified for trading on a each system on which similar securities exchange andissued by the Company are from time to time qualified;
g. otherwise cooperate with the Holders and the managing underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, without limiting other than as provided in the generality Company's certificate of the foregoingincorporation, to arrange for at least two market makers to register as such with respect to and enable such Registrable Securities with FINRAto be in such denominations and registered in such names as the managing underwriter may reasonably request prior to any sale of Registrable Securities to the underwriters;
(i) provide a transfer agent and registrar for all such h. along with each Holders who is selling Registrable Securities not later than the effective date of such registration statement;
(j) Securities, enter into and perform such customary agreements (including underwriting agreements in customary formform with customary indemnification provisions) and take all such other actions as with the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition managing underwriter of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);offering; and
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) i. in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any shares of Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall Company will promptly notify each Holder who is selling Registrable Securities and use its commercially reasonable efforts to promptly to obtain the withdrawal of such order;
; Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in paragraphs 4(e) or (pi) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the hereof, he will forthwith discontinue disposition of such Registrable Securities;
(qshares of Common Stock pursuant to a Piggyback Registration until receipt of copies of an appropriate supplement or amendment to the prospectus under paragraph 4(e) cooperate with or until the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition withdrawal of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing order under the underwriting agreementparagraph 4(i), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 3 contracts
Sources: Registration Rights Agreement (Regent Communications Inc), Registration Rights Agreement (Regent Communications Inc), Registration Rights Agreement (Regent Communications Inc)
Registration Procedures. In connection (a) Registrations under this Agreement shall be on such appropriate form of the Applicable Securities Authority (i) as shall be selected by the Company and as shall be reasonably acceptable to the Holders and (ii) as shall permit the disposition of such Offerable Securities in accordance with the Registration to be intended and customary method or methods of disposition specified in such Holders’ requests for such registration.
(b) In the case of each registration effected pursuant to by the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Company pursuant to this Agreement, the Parent shall Company will keep the Holders advised in writing as to the initiation of each registration and as to the completion thereof. The Company agrees to use its commercially reasonable efforts to effect the or cause such registration and to permit the sale of such Registrable the Offerable Securities covered thereby by the Holders thereof in accordance with the intended method or methods of disposition thereofdistribution thereof described in such Offering Document. In connection with any registration of any Offerable Securities pursuant to Section 2 or 3 hereof, and pursuant thereto the Parent shall Company shall, as expeditiously soon as reasonably possible:possible (unless such registration is deferred or withdrawn pursuant to Sections 2.1(a)(iii), 2.1(b), 2.3(c), 2.5 or 3.2(c) hereof):
(ai) except in connection with a Piggyback Registrationif applicable, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause the Offering Document filed for purposes of such registration to become effective as soon as reasonably possible thereafter and to remain effective for a period of time required for the disposition of such Offerable Securities by the Holders thereof; provided, that, such period need not extend beyond 120 days after the effective date of the Offering Document;
(ii) prepare and file with the Applicable Securities Authority such amendments and supplements to such Offering Document as may be necessary to effect and maintain the effectiveness of such Offering Document as may be required by the applicable rules and regulations of the Applicable Securities Authority, the instructions applicable to the form of such Offering Document and to maintain such effectiveness for so long as may be necessary to effect the distribution of the Offerable Securities as described in such Offering Document, provided, that, such period need not extend beyond 120 days after the effective date of the Offering Document, and furnish to the Holders of the Offerable Securities covered thereby copies of any such supplement or amendment prior to their being used and/or filed with the Applicable Securities Authority; and comply with the provisions of any Applicable Securities Laws with respect to the disposition of all the Offerable Securities to be included in such Offering Document;
(iii) provide (A) one representative appointed by the Holders of the Offerable Securities to be included in such Offering Document, (B) the underwriters (which term, for purposes of this Agreement, shall include a person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the sales or placement agent, if any, therefor, (D) one counsel for such underwriters or agent, and (E) not more than one counsel for all the Holders of such Offerable Securities, the reasonable and customary opportunity to review and comment on such Offering Document and each amendment or supplement thereto;
(iv) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in Section 4(b)(iii) above such pertinent financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in such Section 4(b)(iii), to conduct a reasonable investigation within the meaning of any Applicable Securities Laws; provided, however, that each such party shall be required to maintain in confidence and not disclose to any other person or entity any information or records until such time as (a) such information becomes a matter of public record (whether by virtue of its inclusion in such Offering Document or otherwise), (b) such party shall be required so to disclose such information pursuant to the subpoena or order of any court or other governmental agency or body having jurisdiction over the matter, or (c) such information is required to be set forth in such Offering Document or in an amendment or supplement to such Offering Document in order that such Offering Document, amendment or supplement, as the case may be, does not include an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and provided, further, that the Company need not make such information available, nor need it cause any officer, director or employee to respond to such inquiry, unless the Holders of Offerable Securities to be included in an Offering Document hereunder, upon request, execute and deliver to the Company an undertaking to substantially the same effect contained in the second preceding proviso;
(v) promptly notify the Holders of Offerable Securities to be included in an Offering Document hereunder, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold (A) when such Offering Document or any amendment or supplement or post-effective amendment has been filed, and, with respect to such Offering Document or any post-effective amendment, when the same has become effective, or (2B) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable any comments by any Applicable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus Authority or any request by any Applicable Securities Authority for amendments or supplements theretoto such Offering Document or for additional information, the Parent shall furnish to counsel selected by the Applicable Approving Party copies (C) of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission any Applicable Securities Authority of any stop order suspending the effectiveness of any registration statement such Offering Document or the initiation of any proceedings for that purpose, (BD) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Offerable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and or (CE) if it shall be the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending case, at any time when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered under any Applicable Securities Laws, that such Offering Document or any document incorporated by reference contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in connection with light of the circumstances then existing;
(vi) if applicable, use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Offering Document or any post-effective amendment thereto at the earliest practicable date;
(vii) if reasonably requested by any managing underwriter or underwriters, any placement or sales agent or the Holders of Offerable Securities to be included in an Offering Document, promptly incorporate in a prospectus, prospectus supplement, supplement or post-effective amendment such information as is required by the applicable rules and regulations of any Applicable Securities Authority and as such managing underwriter or underwriters, or such agent may reasonably specify should be included therein relating to the terms of the sale of Registrable the Offerable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act included thereunder, including, without limitation, information with respect to the disposition number of all securities covered Offerable Securities being sold by the agent or to such underwriters, the purchase price being paid therefor by such registration statement during such period in accordance underwriters and with respect to any other terms of the intended methods offering of disposition by the sellers thereof set forth Offerable Securities to be sold in such registration statementoffering; and make all required filings and/or distributions of such prospectus, prospectus supplement, supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus, prospectus supplement, supplement or post-effective amendment;
(dviii) furnish to the Holders of Offerable Securities to be included in such Offering Document hereunder, each seller of Registrable Securities thereunder placement or sales agent, if any, therefor, each underwriter, if any, thereof and the counsel referred to in Section 4(b)(iii) such number of copies of such registration statementthe Offering Document (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by the Holders, each amendment agent or underwriter, as the case may be) and supplement thereto, of the prospectus included in such registration statement Offering Document (including each preliminary prospectus and any summary prospectus), each Free-Writing Prospectus in conformity with the requirements of any Applicable Securities Laws, as the Holders, agent, if any, and such other documents as such seller underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Offerable Securities owned by the Holders sold by such selleragent or underwritten by such underwriter and to permit the Holders, agent and underwriter to satisfy the prospectus delivery requirements of any Applicable Securities Laws; and the Company hereby consents to the use of such prospectus and any amendment or supplement thereto by each such Holder and by any such agent and underwriter, in each case in the form most recently provided to such party by the Company, in connection with the offering and sale of the Offerable Securities covered by the prospectus (including such preliminary and summary prospectus) or any supplement or amendment thereto;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fix) use its commercially reasonable efforts to register, (A) register or qualify or secure an exemption from registration with respect the Offerable Securities to be included in such Registrable Securities Offering Document under such other securities laws or blue sky laws of such local jurisdictions within the Eligible Offering Jurisdiction as the lead Holders, sales or placement agent and each underwriter, if any, of the securities being sold shall reasonably request, (B) keep such registrations in effect and comply with such laws so as to permit the continuance of offers, sales and deadlines therein in such jurisdictions for so long as may be necessary to enable the Holders, sales or placement agent or underwriter or to complete its distribution of the Applicable Approving Party reasonably requests Offerable Securities pursuant to such Offering Document, subject to the limitations set forth in Sections 4(b)(i) and do 4(b)(ii), and (C) take any and all other acts and things which such actions as may be reasonably necessary or advisable to enable such seller the Holders, sales or placement agent, if any, and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided Offerable Securities; provided, however, that the Parent Company shall not be required for any such purpose to (i1) qualify generally to do business as a foreign company in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f4(b)(ix), or (ii2) execute a general consent to general service of process in any effecting such registration, unless the Company is already subject to service in such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)and except as may be required under Applicable Securities Laws;
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(qx) cooperate with the holders Holders of Registrable the Offerable Securities covered by the registration statement to be included in an Offering Document hereunder and the managing underwriter or agent, if any, underwriters to facilitate the timely preparation and delivery of certificates representing securities Offerable Securities to be sold under the registration statement sold, which certificates shall not bear any restrictive legends; and enable such securities Offerable Securities to be in such denominations and registered in such names as the managing underwriterunderwriters may request at least two Business Days prior to any sale of the Offerable Securities;
(xi) to the extent applicable, provide a CUSIP number for all Offerable Securities, not later than the effective date of the Offering Document;
(xii) enter into one or more underwriting agreements, engagement letters, agency agreements, “best efforts” underwriting agreements or similar or customary agreements, as appropriate;
(xiii) in connection with any agreement of the type referred to in the preceding subsection, (A) make such representations and warranties to the placement or sales agent, if any, therefor or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement underwriters, if any, thereof in form, substance and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel scope as are customarily made in connection with any filings required offering of equity securities pursuant to be made with FINRA;
any such agreement and/or to an Offering Document filed on the form applicable to such Offering Document; (sB) use commercially reasonable efforts to obtain an opinion of counsel to the Company in customary form and covering such matters, of the type customarily covered by such an opinion requested in comparable public offerings, as the managing underwriters, if such registration includes an underwritten public offeringany, may reasonably request, addressed to the placement or sales agent, if any, therefor and the underwriters, if any, thereof; (C) use its commercially reasonable efforts to obtain a cold “cold” comfort letter or letters from the Parent’s independent certified public accountants and of the Company addressed to the placement or sales agent, if any, therefor or the underwriters, if any, thereof, with such letter or letters to be in customary form and covering such matters of the type customarily covered by cold comfort letters of such type; and (D) deliver such documents and certificates, including officers’ certificates, as may be customary to evidence compliance with or satisfaction of any agreements or conditions contained in the underwriters in such registration reasonably requestunderwriting agreement or other agreement entered into by the Company;
(txiv) provide a legal opinion notify in writing each Holder of Offerable Securities of any proposal by the Company to amend or waive any provision of this Agreement and of any amendment or waiver effected pursuant thereto, each of which notices shall contain the text of the Parent’s outside counselamendment or waiver proposed or effected, dated as the case may be;
(xv) use commercially reasonable efforts to facilitate the distribution and sale of any Offerable Securities to be offered pursuant to this Agreement, including without limitation, in the use of an underwritten offering, to the extent deemed necessary by the lead managing underwriter in its reasonable discretion, making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be reasonably requested; and
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of any Applicable Securities Authority, and make available to the Holders, as soon as practicable, but in any event not later than eighteen (18) months after the effective date of such Offering Document, an earnings statement covering a period of at least twelve months which shall satisfy the provisions of Applicable Securities Laws.
(c) Subject to Sections 2.3(c) and 2.5, a registration statement requested pursuant to Section 2 hereof shall not be deemed to have been effected:
(andi) unless an Offering Document with respect thereto has been declared effective (to the extent applicable under Applicable Securities Laws) by the Applicable Securities Authority and remains effective in compliance with the provisions of the Applicable Securities Laws and the laws of any other jurisdiction applicable to the disposition of Offerable Securities covered by such Offering Document until such time as all of such Offerable Securities have been disposed of in accordance with the method of disposition set forth in such Offering Document or there shall cease to be any Offerable Securities, provided, that, such period need not exceed 120 days, or
(ii) if, after it has become effective, any stop order, injunction or other order or requirement of the Applicable Securities Authority or other governmental or regulatory agency or court is issued in connection with such Offering Document for any reason other than a violation of applicable law or regulation solely by any Holder or Holders and such Offering Document has not thereafter become effective.
(d) Each Holder shall comply with the prospectus delivery requirements of the Applicable Securities Laws in connection with the offer and sale of Offerable Securities made by such Holder pursuant to any Offering Document. In the event that the Company would be required, pursuant to Section 4(b)(v)(E) above, to notify the Holders of Offerable Securities included in an Offering Document hereunder, the sales or placement agent, if such registration includes an underwritten Public Offeringany, dated and the date managing underwriters, if any, of the closing under securities being sold, the underwriting agreement), with respect Company shall prepare and furnish to the registration statementHolders, to each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, andagent, if at any time when the Parent is required any, and to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registrationeach underwriter, if necessary) during the period throughout which such registration statement is required to be kept effective.any, a reasonable
Appears in 3 contracts
Sources: Offering Rights Agreement, Offering Rights Agreement (Wal Mart Stores Inc), Offering Rights Agreement (Wal Mart Stores Inc)
Registration Procedures. In connection with Whenever the Registration Company is obligated to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of register Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts subject to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereofterms hereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(a) except in connection with a Piggyback Registration, prepare in accordance with use its reasonable best efforts to cause the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement filed with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement (i) to become effective, or effective as promptly as practicable after the making of such filing and (2ii) in the case an to remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement usable for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements theretountil the date on which all Registrable Securities so registered have been sold, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all relevant offering has been abandoned or until such documents proposed securities cease to be filed, which documents shall be subject to the review and comment of such counsel)Registrable Securities;
(b) notify furnish the Securities Holder, its underwriters, if any, and their respective counsel, at such times so as to permit their reasonable review, the opportunity to review the registration statement, each holder prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and to consider in good faith incorporating any comments reasonably requested by the Securities Holder, its underwriters, if any, and their respective counsel, provided that the Securities Holder’s, the underwriters’, if any, and their respective counsels’ review of such documents shall not delay the filing of the registration statement so long as such parties have been provided a reasonable time to review the same;
(c) make available for reasonable inspection by, or give reasonable access to, any underwriter and its counsel participating in any disposition of Registrable Securities all pertinent financial and other records, pertinent corporate documents and properties of the Company and, in respect of any Demand Registration, to cause its senior management to participate in such management presentations and roadshow as such underwriters may reasonably request (Aprovided, however, that such senior management have been given reasonable advanced notice of such presentations and roadshows and that such senior management shall only be obligated to participate in one roadshow of reasonably customary duration in respect of any Demand Registration) and to cause the Company’s directors, officers and employees to supply all information reasonably requested by any such underwriter in connection with the offering thereunder;
(d) promptly notify counsel for the Securities Holder and the managing underwriter or agent and confirm the notice in writing (i) when the registration statement, or any post-effective amendment to the registration statement, will have become effective, or any supplement to the prospectus or any amendment to the prospectus will have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of any the registration statement or the initiation of any proceedings for that purpose, (B) order preventing or suspending the receipt by the Parent or its counsel use of any notification with respect to preliminary prospectus, or of the suspension of the qualification of the Registrable Securities registration statement for offering or sale in any jurisdiction jurisdiction, or of the initiation institution or threatening of any proceeding proceedings for any of such purpose, and (C) the effectiveness of each registration statement filed hereunderpurposes;
(ce) furnish, without charge, to the Securities Holder and to the underwriters of the securities being registered such number of copies of the registration statement, preliminary prospectus, final prospectus and other documents incident thereto as such underwriters and the Securities Holder from time to time may reasonably request;
(f) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act and applicable state securities laws with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dg) furnish use its reasonable best efforts to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities laws or state blue sky laws of such U.S. jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions Securities Holder for the distribution of the Registrable Securities owned covered by such seller (provided the registration statement; provided, however, that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or (iii) jurisdictions or to subject itself to taxation in any such jurisdiction)states or jurisdictions wherein it would not but for the requirements of this paragraph (f) be required to do so;
(gh) promptly notify enter into customary agreements in writing each seller form and substance reasonably satisfactory to the Company (including a customary underwriting agreement in form and substance reasonably satisfactory to the Company, if the offering is to be underwritten, in whole or in part), which may include indemnification provisions in favor of such Registrable Securities underwriters and other Persons in addition to the provisions of Article VI hereof;
(i) after it receives notice thereof, of notify the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Securities 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 contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances then existing and, at the request of any such sellerthe Securities Holder, the Parent as promptly shall prepare, file with the Commission as practicable prepare and furnish to each such seller the Securities Holder a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were madethen existing; provided that, not misleadingupon receipt of such notice from the Company, the Securities Holder will forthwith discontinue disposition of its Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Securities Holder receives the copies of the supplemented or amended prospectus covering such Registrable Securities (and the Securities Holder shall return to the Company all copies of the unsupplemented or unamended prospectus covering such Registrable Securities);
(mj) otherwise use its commercially reasonable efforts making all required filings necessary to comply with list all applicable rules and regulations Registrable Securities covered by such registration statement on the Nasdaq or on such other securities exchange on which shares of the CommissionCommon Stock are then currently listed;
(nk) permit use its reasonable best efforts to prevent the issuance of any holder order suspending the effectiveness of a registration statement or suspending the qualification (or exemption from qualification) of any of the Registrable Securities whoincluded therein for sale in any U.S. jurisdiction, in its good faith judgment (based on the advice of counsel)and, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale in any U.S. jurisdiction, the Parent shall use its commercially reasonable best efforts to promptly to obtain the withdrawal of such order; provided that, upon receipt of notice from the Company of such order, the Securities Holder will forthwith discontinue disposition of its Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Securities Holder is notified by the Company in writing that the order relating to the prospectus covering such Registrable Securities has been withdrawn;
(pl) use its commercially reasonable best efforts to cause obtain “cold comfort” letters and updates thereof reasonably satisfactory to the managing underwriters from the independent certified public accountants of the Company, addressed to each of the underwriters, such Registrable Securities covered by such registration statement letters to be registered in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securitiesunderwritten offerings;
(qm) use its reasonable best efforts to obtain opinions of outside counsel to the Company reasonably satisfactory to the managing underwriters, addressed to each of the underwriters covering the matters customarily covered in opinions of issuer’s counsel requested in underwritten offerings;
(n) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement Holder 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;; and
(so) cooperate with the Securities Holder and the managing underwriter or agent, if any, 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 registration includes an underwritten public offeringsecurities to be in such denominations and registered in such names as the managing underwriter or agent, use its commercially reasonable efforts to obtain a cold comfort letter from if any, or the Parent’s independent public accountants Securities Holder may request; and
(p) comply in all material respects with the Securities Act, the Exchange Act and addressed to the underwriters, in customary form any other applicable rules and covering such matters regulations of the type customarily covered by cold comfort letters Commission, and make available to its securities holders, as soon as reasonably practicable, an earnings statement covering the underwriters in such registration reasonably request;
(t) provide a legal opinion period of the Parent’s outside counsel, dated at least 12 months after the effective date of such registration Registration Statement, which earnings statement (and, if such registration includes an underwritten Public Offering, dated the date shall satisfy Section 11(a) of the closing under the underwriting agreement)Securities Act and any applicable regulations thereunder, with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold158; and
(wq) if an Automatic Shelf Registration Statement has been outstanding provide a transfer agent and registrar for at least three (3) years, at the end of the third year, refile all Registrable Securities registered pursuant hereto and a new Automatic Shelf Registration Statement covering the CUSIP number for all such Registrable Securities, and, if at any time when in each case not later than the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep effective date of such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Central European Distribution Corp), Registration Rights Agreement (Central European Distribution Corp)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02 and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Participating Institutional Investors, if any, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Participating Institutional Investors and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which any Participating Institutional Investor or the underwriters, if any, shall reasonably object;
(bii) notify each holder of as promptly as practicable file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by any Participating Institutional Investor, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (z) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used in connection therewith as may Participating Institutional Investor(s) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (Section 2.01(c) or 2.02(b), whichever is applicable, provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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;
(xiv) 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;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as any Participating Institutional Investor or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of Section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if the Parent does not pay the filing fee covering the Registrable Securities make available upon reasonable notice at the time an Automatic Shelf reasonable times and for reasonable periods for inspection by any Participating Institutional Investor, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee at Participating Institutional Investor(s) or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; 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 times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person; and
(wxxiii) if in the case of an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsUnderwritten Offering, at cause the end senior executive officers of the third yearCompany to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such Underwritten Offering and otherwise to facilitate, refile a new Automatic Shelf Registration Statement covering the Registrable Securitiescooperate with, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable and participate in each proposed offering contemplated herein and customary selling efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiverelated thereto.
Appears in 3 contracts
Sources: Registration Rights Agreement (Silk Road Medical Inc), Registration Rights Agreement (Silk Road Medical Inc), Registration Rights Agreement (Silk Road Medical Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Sections 5.2, 5.3 or 5.4 to effect the registration of shares of Registrable Securities have requested that any Registrable under the Securities be registered pursuant to this AgreementAct, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method methods of disposition thereofspecified by the holders participating therein. Without limiting the foregoing, and pursuant thereto the Parent shall Company in each such case will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case of a demand registration pursuant to Section 5.2 or 5.4) the requisite registration statement to effect such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses (including such audited financial statements as may be necessary to comply with applicable securities laws, with respect to such Registrable required by the Securities Act or the rules and regulations promulgated thereunder) and use commercially reasonable its best efforts to cause such registration statement to become effective; provided, or (2) however, that as far in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days advance as practical before filing a such registration statement or prospectus or any amendments or supplements amendment thereto, the Parent shall Company will furnish to counsel selected by for the Applicable Approving Party requesting holders copies of reasonably complete drafts of all such documents proposed to be filedfiled (including exhibits), which documents and any such holder shall be subject have the opportunity to object to any information pertaining solely to such holder that is contained therein and the review and comment of Company will make the corrections reasonably requested by such counsel)holder with respect to such information prior to filing any such registration statement or amendment;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement during statement, in accordance with the intended methods of disposition thereof, until the earlier of (i) such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (ii) one hundred eighty (180) days after such registration statement becomes effective;
(c) promptly notify each requesting holder and the underwriter or underwriters, if any:
(i) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective;
(ii) of any written request by the Commission for amendments or supplements to such registration statement or prospectus;
(iii) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of such registration statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction;
(d) furnish to each seller of Registrable Securities thereunder included in such registration statement 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, the prospectus included contained in such registration statement (including each preliminary prospectus and any summary prospectus)) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller’s Registrable Securities, each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the its Registrable Securities owned by such sellerSecurities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such all Registrable Securities included in such registration statement under such other securities or blue sky laws of such jurisdictions as each holder of Registrable Securities thereof shall reasonably request within twenty (20) days following the lead underwriter original filing of such registration statement and to keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided holder, except that the Parent Company shall not for any such purpose be required to (i) to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f)paragraph (e) be obligated to be so qualified, (ii) to consent to general service of process in any such jurisdiction or (iii) to subject itself to taxation in any such jurisdiction)jurisdiction by reason of such registration or qualification;
(f) use its best efforts to cause all Registrable Securities included in such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable each holder thereof to consummate the disposition of such Registrable Securities;
(g) promptly notify in writing each seller if and to the extent any of the following are obtained by or furnished to the Company or the underwriters, furnish to any holder who so requests a signed counterpart, addressed to such Registrable Securities holder (and the underwriters, if any), of:
(i) after it receives notice thereof, an opinion of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission counsel for the amendment or supplementing Company, dated the effective date of such registration statement or prospectus or for additional information(or, and if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), and
(iiiii) a “cold comfort” letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement; provided, however, that the obligation to furnish a “cold comfort” letter shall only be imposed to the extent permitted under any then-prevailing rules of accounting procedure;
(h) notify each holder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the any prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, and at the request of any such seller, the Parent holder promptly shall prepare, file with the Commission prepare and furnish to each such seller holder a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(mi) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(nj) permit any holder of provide a transfer agent and registrar for all Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated not later than the effective date of such registration statement statement; and
(and, if k) use its best efforts to cause all Registrable Securities included in such registration includes an underwritten Public Offeringstatement to be listed, dated the date upon official notice of issuance, on any securities exchange or quotation system on which any of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters securities of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times same class as the Registrable Securities are to be sold; andthen listed.
(wl) The Company may require each holder whose Registrable Securities are being registered to, and each such holder shall, as a condition to including Registrable Securities in such registration, furnish the Company and the underwriters with such information and affidavits regarding such holder and the distribution of such securities as the Company and the underwriters may from time to time reasonably request in writing in connection with such registration. At any time during the effectiveness of any registration statement covering Registrable Securities offered by a holder, if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at such holder becomes aware of any change materially affecting the end accuracy of the third yearinformation contained in such registration statement or the prospectus (as then amended or supplemented) relating to such holder, refile a new Automatic Shelf Registration Statement covering it will immediately notify the Company of such change.
(m) Upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (h) of this Section 5.5, each holder will forthwith discontinue such holder’s disposition of Registrable Securities, Securities pursuant to the registration statement relating to such Registrable Securities until such holder receives the copies of the supplemented or amended prospectus contemplated by paragraph (h) of this Section 5.5 and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then in such holder’s possession of the prospectus relating to such Registrable Securities current at any the time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep of receipt of such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivenotice.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 2.3, 2.4 or 2.5 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any Restricted Shares under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a Registration Statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 2.3, a registration statementshall be on Form S-1, and all amendments and supplements thereto and related prospectuses Form F-1 or Form F-10 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Shares covered by such registration statement during such period Registration Statement in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to each seller of Registrable Securities thereunder Restricted Shares and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents ) as such seller persons reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned Restricted Shares covered by such sellerRegistration Statement;
(ed) during any period in which a prospectus is required use reasonable best efforts to be delivered register or qualify the Restricted Shares covered by such Registration Statement under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Shares or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request; provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction jurisdiction;
(e) use reasonable best efforts to list the Restricted Shares covered by such Registration Statement with any securities exchange or over-the-counter market on which the Common Shares of the Company is then listed or quoted, as the case may be;
(iiif) subject itself to taxation in any promptly provide a transfer agent and registrar for all such jurisdiction)Restricted Shares not later than the effective date of such Registration Statement;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement Restricted Shares and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtainedsuch Registration Statement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in light of the request circumstances then existing (it being understood that the sellers of any Restricted Shares agree upon receipt of such seller, the Parent promptly shall prepare, file with the Commission notice forthwith to cease making offers and furnish to each such seller a reasonable number sales of copies of a supplement or amendment Restricted Shares pursuant to such Registration Statement or deliveries of the prospectus contained therein for any purpose until the Company has prepared and furnished such amendment or supplement to the prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Shares, such prospectus shall not contain include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing);
(h) if the offering is underwritten and at the request of any seller of Restricted Shares, use reasonable best efforts to furnish on the date that Restricted Shares is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and substantially to the effect that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements contained therein), (C) nothing has come to the attention of such counsel during the course of their representation of the Company that leads them to believe that the Registration Statement, the related prospectus or any amendment or supplement thereof (except as to the financial statements (including the notes thereto) and schedules and other financial and statistical data contained or incorporated by reference therein as to which such counsel need not express any opinion or belief) at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities , or that the prospectus as of its date or the date on which the shares being offered are sold to the underwriters, or any later date on which the underwriters purchase shares subject to an over allotment option, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be listed on each securities exchange on stated therein or necessary in order to make the statements therein, in the light of the circumstances under which similar securities issued they were made, not misleading (it being understood that such counsel expresses no comment as to any financial statements (including the notes thereto) and schedules and other financial or statistical data contained in the Registration Statement, the related prospectus or any amendment or supplement thereof), and (D) to such other effects as are customary and reasonably may be requested by counsel to the underwriters or by such seller or its counsel (it being understood that if a change in the laws of the United States has occurred, such opinion shall be in a form then customary for an underwritten public offering); and (ii) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters and to such seller, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Shares upon reasonable notice, any underwriter participating in any disposition distribution pursuant to such registration statement Registration Statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lRegistration Statement. For purposes of Sections 2.7(a) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement and 2.7(b) and 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;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counselSection 2.3(c), could reasonably be expected to the period of distribution of Restricted Shares in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Shares in any other registration shall be an underwriter or a controlling Person deemed to extend until the earlier of the Parent to participate in sale of all Restricted Shares covered thereby and one hundred twenty (120) days after the preparation effective date thereof. In connection with each registration hereunder, the sellers of such registration or comparable statement and to require the insertion therein of material furnished Restricted Shares will (x) furnish to the Parent Company in writingwriting such information with respect to themselves, which in the reasonable judgment of such holder Restricted Shares held by them and the proposed distribution by them as reasonably requested by the Company and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with such registration, (y) agree to sell Restricted Shares on the basis provided in any filings underwriting arrangements, and (z) complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents as may be required under the terms of such underwriting arrangements. In connection with each registration pursuant to be made with FINRA;
(s) if such registration includes Sections 2.3, 2.4 or 2.5 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters Company’s size and investment stature and as are consistent with the underwriters in such registration reasonably request;
(t) provide a legal opinion terms of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivethis Agreement.
Appears in 3 contracts
Sources: Investor Rights Agreement (PointClickCare Corp.), Investor Rights Agreement (PointClickCare Corp.), Investor Rights Agreement (PointClickCare Corp.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Company is required to effect any registration under the Securities have requested that any Registrable Securities be registered pursuant to this AgreementAct as provided in Sections 2.1(a), 2.1(g) or 2.2 hereof, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereofCompany shall, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) within the time periods set forth herein the requisite registration statement to effect such registration, which registration statement shall comply as to form in all material respects with the case requirements of the applicable form and include all financial statements required by such request requires a subsequent Resale Shelf Registration Statement, a registration statementform to be filed therewith, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to become as soon as reasonably possible and remain effective; provided, however, that the Company may discontinue any registration of its securities that are not Registrable Shares (and, under the circumstances specified in Sections 2.2(a)(ii) or (22.7 hereof, its securities that are Registrable Shares) in at any time prior to the case an effective Resale Shelf Registration Statement is on file with date of the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements relating thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus, including any free writing prospectus used as defined in connection therewith Rule 405 under the Securities Act, as may be necessary to keep such registration statement effective for a period ending when all and to comply with the provisions of the securities Securities Act and the Exchange Act with respect to the disposition of all Registrable Shares covered by such registration statement until such time as all of such Registrable Shares have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statement; provided, however, that with respect to each free writing prospectus or other materials to be delivered to purchasers at the time of sale of the Registrable Shares, the Company shall (i) ensure that no Registrable Shares be sold “by means of” (as defined in Rule 159A(b) under the Securities Act) such free writing prospectus or other materials without the prior written consent of the sellers of the Registrable Shares covered by such registration statement, which free writing prospectus or other materials shall be subject to the review of counsel to such sellers, and (ii) make all required filings of all free writing prospectuses or other materials with the Commission as are required;
(dc) furnish furnish, without charge, to each seller of Registrable Securities thereunder Shares covered by such registration statement and each underwriter, if any, copies of such drafts and final conformed versions of such registration statement and of each such amendment and supplement thereto as may be reasonably requested (in each case including all exhibits and any documents incorporated by reference, except to the extent such exhibits and documents are currently available via the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”)), such number of copies of such registration statement, each amendment drafts and supplement thereto, final versions of the prospectus included contained in such registration statement (including each preliminary prospectus and any summary prospectus)) and any other prospectus filed under Rule 424 under the Securities Act, each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents documents, as such seller any Selling Stockholder or any underwriter may reasonably request in order writing;
(d) use its commercially reasonable efforts (i) to facilitate register or qualify all Registrable Shares and other securities, if any, covered by such registration statement under such other securities or blue sky laws of such states or other jurisdictions of the United States of America as the sellers of Registrable Shares covered by such registration statement shall reasonably request in writing, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (iii) to take any other action that may be necessary or reasonably advisable to enable such sellers to consummate the disposition in such jurisdictions of the Registrable Securities owned Shares to be sold by such sellersellers, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subsection (d) be obligated to be so qualified, to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) during any period in which a prospectus is required use its commercially reasonable efforts to cause all Registrable Shares and other securities, if any, covered by such registration statement to be delivered under registered with or approved by such other Governmental Authorities as may be necessary in the Securities Act, promptly file all documents required opinion of counsel to be filed with the Commission, including pursuant Company and counsel to Sections 13(a), 13(c), 14 the seller or 15(d) sellers of Registrable Shares to enable the Securities Actseller or sellers thereof to consummate the disposition of such Registrable Shares;
(f) use its commercially reasonable efforts to registerobtain and furnish to each Selling Stockholder, qualify and each underwriter, if any, a signed (i) opinion of counsel for the Company and addressed to the underwriters, reasonably satisfactory (based on the customary form and substance of opinions of such counsel customarily given in such an offering) in form and substance to the managing underwriters, and (ii) comfort letter, dated the effective date of such registration statement and dated the date of the closing under the underwriting agreement and, in each case, addressed to the underwriters and signed by the independent registered public accounting firm that certified the Company’s financial statements included or secure incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of comfort letters of such independent registered public accounting firm customarily given in such an exemption from registration offering) in form and substance to the managing underwriter(s), in each case of clauses (i) and (ii), covering substantially the same matters with respect to such Registrable Securities under such other securities or blue sky laws registration statement (and the prospectus included therein) and, in the case of the independent registered public accounting firm’s comfort letter, with respect to events subsequent to the date of such jurisdictions financial statements, as are customarily covered in opinions of issuer’s counsel and in the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable independent registered public accounting firm’s comfort letters delivered to enable such seller to consummate the disposition underwriters in such jurisdictions underwritten Public Offerings of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)securities;
(g) use its commercially reasonable efforts to deliver promptly to participating Stockholders and the managing underwriters, if any, copies of all correspondence between the Commission and the Company, its counsel or its auditors, and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement (except to the extent such correspondence is currently available via ▇▇▇▇▇) and permit those Stockholders to do such investigation with respect to information contained in or omitted from the registration statement as they deem reasonably necessary for the purpose of conducting due diligence with respect to the Company; provided that any such investigation shall not interfere unreasonably with the Company’s business;
(h) notify in writing each seller Selling Stockholder, managing underwriter(s) and other holders of such Registrable Securities (i) after it receives notice thereof, of the date and time when securities covered by such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereofif any, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the written request of any such sellerseller of Registrable Shares, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus prospectus, as supplemented or amended, shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(hi) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement relating to the Registrable Shares at the earliest possible moment;
(j) otherwise comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first full calendar month after the effective date of such registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(k) use its commercially reasonable efforts to cause all such Registrable Securities Shares covered by a registration statement to be listed on each the New York Stock Exchange, the Nasdaq Global Market or a similar national securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAexchange;
(il) provide a transfer agent and registrar for all the Registrable Shares covered by a registration statement no later than the effective date thereof;
(m) enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as the Selling Stockholder or Selling Stockholders, as the case may be, owning at least a majority of the Registrable Shares covered by such registration statement shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Shares, including customary indemnification and contribution to the effect and to the extent provided in Section 2.8 hereof;
(n) make available for inspection by representatives of the Selling Stockholder and the representative of any underwriters participating in any disposition pursuant to a registration statement and any special counsel or accountants retained by such Selling Stockholder or underwriters, all financial and other records, pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representatives, the representative of the underwriters, counsel thereto or accountants in connection with a registration statement; provided, however, that such records, documents or information that the Company determines, in good faith, to be confidential and notifies such representatives, representative of the underwriters, counsel thereto or accountants are confidential shall not be disclosed by such representatives, representative of the underwriters, counsel thereto or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a misstatement or omission in a registration statement, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (iii) such records, documents or information have been generally made available to the public; provided, further, however, that, notwithstanding anything to the contrary in this Agreement, the Company shall not provide any material non-public information to the Stockholder without such Stockholder’s prior consent;
(o) if requested by the managing underwriter(s) or the Stockholder or Selling Stockholders, as the case may be, owning at least a majority of the Registrable Shares being sold in connection with an underwritten Public Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter(s) and the any such Stockholders of a majority of the Registrable Shares being sold reasonably request to be included therein relating to the plan of distribution with respect to such Registrable Shares, including information with respect to the number of Registrable Shares being sold to such underwriters, the purchase price being paid therefore by such underwriters and with respect to any other terms of the underwritten Public Offering of the Registrable Shares to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(p) prepare and file in a timely manner all documents and reports required by the Exchange Act and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of the Exchange Act expires prior to the expiration of the effectiveness period of the registration statement, the Company shall register the Registrable Shares under the Exchange Act and shall maintain such registration through the effectiveness period;
(q) provide a CUSIP number for all Registrable Shares, not later than the effective date of the registration statement;
(r) provide and cause to be maintained a registrar and transfer agent for all Registrable Shares covered by any registration statement from and after a date not later than the effective date of such registration statement;
(js) enter into enable such Registrable Shares to be in such share amounts and perform registered in such customary agreements (including underwriting agreements in customary form) and take all such other actions names as the Applicable Approving Party or managing underwriter(s) or, if none, the Selling Stockholders holding a majority of the Registrable Shares being sold, may request at least three (3) Business Days prior to any sale of Registrable Shares to the underwriters; and
(t) if the registration shall be for an underwritten Public Offering, cause management of the Company to provide Customary Cooperation, if anyso requested by the Selling Stockholder or Selling Stockholders, reasonably request as the case may be, owning at least a majority of the Registrable Shares being sold. As a condition to the obligations of the Company to complete any registration pursuant to this Agreement with respect to the Registrable Shares of a Stockholder, such Stockholder must furnish to the Company in order to expedite or facilitate writing such information (the “Stockholder Information”) regarding itself, the Registrable Shares held by it and the intended methods of disposition of the Registrable Shares held by it as is necessary to effect the registration of such Stockholder’s Registrable Securities (including, without limitation, effecting a stock split Shares and is requested in writing by the Company. The Stockholder shall promptly notify the Company of any inaccuracy or a combination of shares and preparing for and participating change in such number of “road shows”, investor presentations and marketing events as information previously furnished by the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant Stockholder to such registration statement and any attorney, accountant the Company or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent occurrence of any event, in either case as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by a result of which any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act prospectus relating to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not Registrable Shares contains or would contain any an untrue statement of a material fact or omit omits to state a 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;
(m) otherwise use its commercially reasonable efforts , and promptly furnish to comply with all applicable rules the Company any additional information required to correct and regulations update any previously furnished information or required so that such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the Commission;
(n) permit any holder circumstances under which they were made, not misleading. Each Stockholder agrees that as of the date that a final prospectus is made available to it for distribution to prospective purchasers of Registrable Securities whoShares, it shall cease to distribute copies of any preliminary prospectus prepared in its good faith judgment (based on connection with the advice offer and sale of counsel)such Registrable Shares. Each Stockholder further agrees that, could reasonably be expected to be deemed to be an underwriter or a controlling Person upon receipt of any notice from the Company of the Parent to participate in the preparation happening of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the any event of the issuance kind described in subsection (h) of any stop order suspending the effectiveness of a registration statementthis Section 2.4, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent Stockholder shall use its commercially reasonable efforts promptly to obtain the withdrawal of forthwith discontinue such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the Stockholder’s disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by Shares pursuant to the registration statement and the managing underwriter or agent, if any, relating to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if Shares until such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the ParentStockholder’s independent public accountants and addressed to the underwriters, in customary form and covering such matters receipt of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion copies of the Parent’s outside counsel, dated the effective date supplemented or amended prospectus contemplated by subsection (h) of such registration statement (this Section 2.4 and, if such registration includes an underwritten Public Offeringso directed by the Company, dated the date of the closing under the underwriting agreement), with respect shall deliver to the registration statement, each amendment and supplement thereto, the prospectus included therein Company (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, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filedCompany’s expense) all copies, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.other than permanent fi
Appears in 2 contracts
Sources: Registration Rights Agreement (Cadence Bancorporation), Registration Rights Agreement (Cadence Bancorporation)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant this Agreement to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission a Registration Statement with respect to such Registrable Shares and use its best efforts to cause that Registration Statement to become and remain effective;
(b) prepare and file with the Commission any amendments and supplements to such registration statement the Registration Statement and the prospectus used included in connection therewith the Registration Statement as may be necessary to keep such registration statement the Registration Statement effective for a period ending when all of not less than 365 days from the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementeffective date;
(dc) furnish to each seller of Registrable Securities thereunder selling Stockholder such number reasonable numbers of copies of such registration statementthe prospectus, each amendment and supplement thereto, the prospectus included in such registration statement (including each a preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as such seller the selling Stockholder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such sellerthe selling Stockholder;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities Shares covered by the Registration Statement under such other the securities or blue sky “Blue Sky” laws of such jurisdictions states as the lead underwriter or the Applicable Approving Party selling Stockholders shall reasonably requests request, and do any and all other acts and things which that may be reasonably necessary or advisable desirable to enable such seller the selling Stockholders to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities Shares owned by such seller (provided the selling Stockholders; provided, however, that the Parent Company shall not be required to (iin connection with this Section 4(d) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)as a foreign corporation, (ii) execute a general consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, event of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationunderwritten public offering, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including its obligations under an underwriting agreements agreement, in usual and customary form, with the managing underwriter(s) of such offering; and
(f) use its best efforts to furnish, on the date that such Registrable Shares are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for purposes of such registration, in form and take all such other actions substance as the Applicable Approving Party or is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, reasonably request in order to expedite or facilitate the disposition and (ii) a letter dated as of such Registrable Securities (includingdate, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as from the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties independent certified public accountants of the Parent Company, in form and substance as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and is customarily given by independent certified public accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent underwriters in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form each case also addressed to the selling Stockholders, and covering such matters to provide copies thereof to the selling Stockholders. If the Company has delivered preliminary or final prospectuses to the selling Stockholders and after having done so the prospectus is amended to comply with the requirements of the type customarily covered by cold comfort letters as Securities Act, the underwriters in such registration reasonably request;
(t) provide a legal opinion of Company shall promptly notify the Parent’s outside counsel, dated the effective date of such registration statement (selling Stockholders and, if such registration includes an underwritten Public Offeringrequested, dated the date selling Stockholders shall immediately cease making offers of Registrable Shares and return all prospectuses to the Company. The Company shall promptly provide the selling Stockholders with revised prospectuses and, following receipt of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement theretorevised prospectuses, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters selling Stockholders shall be free to resume making offers of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveShares.
Appears in 2 contracts
Sources: Investor Rights Agreement (Merrimack Pharmaceuticals Inc), Investor Rights Agreement (Merrimack Pharmaceuticals Inc)
Registration Procedures. In connection with the Registration Whenever it is obligated to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that register any Registrable Securities be registered Restricted Stock pursuant to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC a Registration Statement with respect to the Restricted Stock in the manner set forth at Sections 3(a) or 3(b) hereof and use reasonable efforts to cause such Registration Statement to remain effective for that period identified in Section 4(g) hereafter;
(b) prepare and file with the SEC such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates Section 4(g) below and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period Registration Statement in accordance with the Holder's intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to the Holder and to each seller of Registrable Securities thereunder underwriter, if any, such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned Restricted Stock covered by such sellerRegistration Statement;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to the Restricted Stock covered by such Registrable Securities Registration Statement under such other the securities or blue sky laws of such jurisdictions as the lead Holder, or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided request; provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of the Holder under such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement Registration Statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedunderwriter, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included contained in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required or necessary to be stated therein in order to make the statements contained therein not misleading, and, at misleading in light of the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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 misleadingcircumstances under which they were made;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kf) make available for inspection by any seller of Registrable Securitiesthe Holder, any underwriter participating in any disposition pursuant to such registration statement Registration Statement, and any attorney, accountant or other agent retained by any such seller Holder or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such sellerthe Holder, underwriter, attorney, accountant or agent in connection with such registration statementRegistration Statement;
(lg) for purposes of Sections 4(a) and 4(b) above, the period of distribution of Restricted Stock shall be deemed to extend until the earlier of: (A) in an underwritten public offering of all of the Restricted Stock, the period in which each underwriter has completed the distribution of all securities purchased by it; (B) in any other registration, the earlier of the period in which all shares of Restricted Stock covered thereby shall have been sold or two (2) years from the effective date of the first Registration Statement filed by the Company with the SEC pursuant to this Agreement.
(h) if the Common Stock of the Company is listed on any securities exchange or automated quotation system, the Company shall use reasonable efforts to list (with the listing application being made at the time of the filing of such Registration Statement or as soon thereafter as is reasonably practicable) the Restricted Stock covered by such Registration Statement on such exchange or automated quotation system;
(i) enter into normal and customary underwriting arrangements or an underwriting agreement and take all other reasonable and customary actions if the Holder sells its shares of Restricted Stock pursuant to ensure that any Free-Writing Prospectus utilized an underwriting (however, in no event shall the Company, in connection with such underwriting, be required to undertake any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement special audit of a material fact or omit to state a material fact necessary to make the statements therein, fiscal period in light of the circumstances under which they were made, an audit is normally not misleadingrequired);
(mj) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of notify the Commission;
(n) permit Holder if there are any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished amendments to the Parent in writingRegistration Statement, which in any requests by the reasonable judgment of such holder and its counsel should be included;
(o) in SEC to supplement or amend the event of the issuance of any stop order suspending the effectiveness of a registration statementRegistration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered threat by the registration statement and the managing underwriter SEC or agent, if any, state securities commission to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain undertake a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), stop order with respect to sales under the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be soldStatement; and
(wk) if cooperate in the removal of any restrictive legends from the shares of Restricted Stock in connection with the resale of such shares covered by an Automatic Shelf effective Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 2 contracts
Sources: Registration Rights Agreement (VDC Communications Inc), Registration Rights Agreement (Moran Frederick W)
Registration Procedures. In connection with the Registration Subject to be effected pursuant to the Resale Shelf Registration StatementSection 4.12(a)(4), and whenever the holders Investor or any transferees of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 4.12(a) or 4.12(b) of this Agreement, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities as soon as reasonably practicable in accordance with the intended method of disposition thereof, thereof and pursuant thereto the Parent thereto. The Company shall use its reasonable best efforts to as expeditiously as reasonably possible:
(a1) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires SEC a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities, make all required filings with the National Association of Securities Dealers and the Financial Industry Regulatory Authority and thereafter use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effectiveeffective as soon as reasonably practicable, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus Registration Statement or any amendments or supplements thereto, the Parent shall Company will, in the case of a Demand Registration, furnish to counsel selected by the Applicable Approving Party Holder’s Counsel copies of all such documents proposed to be filed, which documents shall will be subject to the review and comment of such counsel)counsel at the Company’s expense;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c2) prepare and file with the Commission SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such registration statement Registration Statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement either (but i) not in any event before the expiration of any longer period required under the Securities Act orless than (A) three months, (B) if such registration statement Registration Statement relates to an underwritten Public Offeringoffering, such longer period as in as, based upon the opinion of counsel for the underwriters underwriters, a prospectus is required by law to be delivered in connection with sale sales of Registrable Securities by an underwriter or dealerdealer or (C) continuously in the case of shelf registration statements and any shelf registration statement shall be re-filed upon its expiration (or in each case such shorter period ending on the date that the securities covered by such shelf registration statement cease to constitute Registrable Securities) or (ii) such shorter period as will terminate when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during Registration Statement until such period 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 statementRegistration Statement;
(d3) furnish to each seller of Registrable Securities thereunder such number of copies copies, without charge, of such registration statementRegistration Statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), each Free-Writing Prospectus all exhibits and other documents filed therewith and such other documents as such seller may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e4) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 register or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party any seller reasonably requests and do any and all other acts and things which that may be reasonably necessary or reasonably advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g5) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofand the Holder’s Counsel, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any such selleras soon as reasonably practicable, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(h6) notify each seller of any Registrable Securities covered by such Registration Statement and the Holder’s Counsel (i) when such Registration Statement or the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, and (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for any of such purposes;
(7) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed andor, if not so listedno similar securities issued by the Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on a securities exchange andthe New York Stock Exchange or the NASDAQ stock market, without limiting as determined by the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRACompany;
(i) 8) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statementRegistration Statement;
(j9) enter into and perform such customary agreements (including underwriting agreements and, subject to Section 4.12(g), lock-up agreements in customary form, and including provisions with respect to indemnification and contribution in customary form) and take all such other customary actions as the Applicable Approving Party Investor, the participating transferees or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination making members of shares management and preparing for and participating executives of the Company available to participate in such number of “road shows”, investor presentations show,” similar sales events and other marketing events as activities; provided that the underwriters managing such offering may reasonably requestCompany shall not be required to make members of management and executives of the Company so available for more than five consecutive days or more than 10 days in any 365 day period);
(k10) make available for inspection by any seller of Registrable SecuritiesSecurities and the Holder’s Counsel, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties documents relating to the business of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statementRegistration Statement, provided that it shall be a condition to such inspection and receipt of such information that the inspecting person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to minimize the disruption to the Company’s business in connection with the foregoing;
(l11) take all reasonable actions timely provide to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with its security holders earning statements satisfying the Securities Act, is filed in accordance with provisions of Section 11(a) of the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingand Rule 158 thereunder;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o12) in the event of the issuance of any stop order suspending the effectiveness of a registration statementRegistration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification ceasing trading of any Common Stock securities included in such registration statement Registration Statement for sale in any jurisdiction, the Parent shall use its commercially every reasonable efforts effort to promptly to obtain the withdrawal of such order;
(p13) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with obtain one or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agentmore comfort letters, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, if any, dated the effective date of such Registration Statement and the date of the closing under the underwriting agreement for such offering, signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the such underwriters in such registration shall reasonably request;
(t14) provide a legal opinion opinions of the ParentCompany’s outside counsel, dated addressed to the effective date of such registration statement (andunderwriters, if such registration includes an underwritten Public Offeringany, dated the date of the closing under the underwriting agreement), with respect to the registration statementRegistration Statement, each amendment and supplement thereto, the prospectus included therein thereto (including the preliminary prospectus) and such other documents relating thereto as the underwriter shall reasonably request in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w15) if obtain any required regulatory or stockholder approval necessary for the Investor or any transferee to sell its Registrable Securities in an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile offering. As a new Automatic Shelf Registration Statement covering the condition to registering Registrable Securities, and, if at the Company may require the Investor and any time when transferee holding Registrable Securities as to which any registration is being effected to furnish the Parent is required Company with such information regarding such person and pertinent to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts disclosure requirements relating to refile the registration statement on Form S-3 and keep the distribution of such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during securities as the period throughout which such registration statement is required Company may from time to be kept effectivetime reasonably request in writing.
Appears in 2 contracts
Sources: Investment Agreement (Mbia Inc), Investment Agreement (Mbia Inc)
Registration Procedures. In connection with Whenever the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have Investor has requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall Company will use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, distribution thereof (which may include an underwritten offering conducted by an underwriter or underwriters selected by the Investor) and pursuant thereto the Parent shall will as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, SEC a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities and use commercially reasonable its best efforts to cause such registration statement to become effectiveeffective as soon as possible thereafter and to remain effective as otherwise provided in this Section 4, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall Company will furnish to the counsel selected by the Applicable Approving Party Investor copies of all such documents proposed to be filed, which documents shall will be subject to the review and comment of such counsel)counsel and the sections of the registration statement covering information with respect to the Investor, the Investor's beneficial ownership of securities of the Company and the Investor's intended method of disposition of the Registrable Securities shall conform to the information provided by the Investor;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when of at least two years (as extended by the aggregate number of days included in all periods of postponement, suspension and/or lockup of sales under Sections 4.4, 4.8 and 4.18) or until the securities covered by such Investor has completed the distribution described in the registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act orrelating thereto, if such registration statement relates to an underwritten Public Offeringwhichever first occurs, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition distribution by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of Registrable Securities thereunder the Investor such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus ) and such other documents as such seller the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerthe Investor;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Investor reasonably requests and do any and all other acts and things which that may be reasonably necessary or advisable to enable such seller the Investor to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (the Investor, provided that the Parent shall Company will not be required to (i) to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)subparagraph, (ii) to subject itself to taxation in any such jurisdiction, or (iii) to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofInvestor, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such sellerthe Investor, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hf) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed and, if not so listed, and to be listed qualified for trading on a each system on which similar securities exchange andissued by the Company are from time to time qualified, without limiting and the generality Company agrees to use commercially reasonable efforts to maintain listing of the foregoing, to arrange Common Stock on the American Stock Exchange or the other primary national exchange or quotation system that constitutes the principal market for the Common Stock at least two market makers to register as such with respect to such Registrable Securities with FINRAthe time;
(ig) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statementstatement and thereafter maintain such a transfer agent and registrar;
(jh) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party Investor or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (includingbeing sold, without limitation, effecting a stock split or a combination including obtaining customary letters and consents from the Company's independent certified public accountants and the participation of shares and preparing for and participating management in such number of “at least one "road shows”, investor presentations and marketing events as show" if requested by the underwriters managing such offering may at a time and location reasonably request)acceptable to management;
(ki) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lj) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with permit the Securities ActInvestor, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinif it might be deemed, in light the sole and exclusive judgment of the circumstances under which they were madeInvestor, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which that in the reasonable judgment of such holder and the Investor or its counsel should be included;
(ok) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale in any jurisdiction, the Parent shall Company will notify the Investor and use its commercially reasonable best efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(wl) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at take all other reasonable actions necessary to expedite and facilitate the end registration and the sale of the third year, refile a new Automatic Shelf Registration Statement covering Registrable Securities in accordance with the Registrable Securities, and, if at intended method of distribution thereof. If any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective refers to the Investor by name or otherwise as the holder of any securities of the Company and if, in the sole and exclusive judgment of the Investor, the Investor is or might be deemed to be a controlling person of the Company, the Investor shall have the right to require (including by filing a new Resale Shelf Registration or Shelf Registration, if necessarya) during the period throughout which inclusion in such registration statement of language, in form and substance reasonably satisfactory to Investor, to the effect that the holding of such securities by Investor is required not to be kept effectiveconstrued as a recommendation by Investor of the investment quality of the Company's securities covered thereby and that such holding does not imply that the Investor will assist in meeting any future financial requirements of the Company, or (b) in the event that such reference to Investor by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to the Investor; provided, that with respect to this clause (b) the Investor shall furnish to the Company an opinion of counsel to such effect, which opinion of counsel shall be reasonably satisfactory to the Company.
Appears in 2 contracts
Sources: Investor Rights Agreement (NTN Communications Inc), Investor Rights Agreement (NTN Communications Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt after the end of such requestthe period within which requests for registration may be given to the Company, file with the Securities and Exchange Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days that, before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent Company shall furnish to the counsel selected by the Applicable Approving Party 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);
(b) notify in writing each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement not less than 180 days (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offeringoffering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale sales of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus and any supplemental prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller of Registrable Securities (provided that the Parent 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 Section 4(f4(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofSecurities, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made, and, at the request of any the holders of a majority of the Registrable Securities covered by such sellerregistration statement, the Parent Company shall promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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 misleadingmisleading in light of the circumstances under which they were made;
(hf) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed and, if not so listed, to be listed on a securities exchange the NASD automated quotation system and, without limiting if listed on the generality NASD automated quotation system, use its best efforts to secure designation of the foregoing, to arrange for at least two market makers to register as such with respect to all such Registrable Securities with FINRAcovered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities;
(ig) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(jh) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, including effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably requestshares);
(ki) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement statement, and any attorney, accountant accountant, or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant accountant, or agent in connection with such registration statementstatement and assist and, at the request of any participating underwriter, use commercially reasonable efforts to cause such officers or directors to participate in presentations to prospective purchasers;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mj) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(nk) permit any holder of Registrable Securities whowhich holder, in its good faith judgment (based on the advice of counsel)sole and exclusive judgment, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(ol) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock equity securities included in such registration statement for sale in any jurisdiction, the Parent Company shall use its commercially reasonable best efforts promptly to obtain the withdrawal of such order;
(pm) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(qn) cooperate with obtain one or more cold comfort letters, dated the holders effective date of Registrable Securities covered by the such registration statement and the managing underwriter or agent(and, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter dated the date of the closing under the underwriting agreement), from the Parent’s Company's independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters holders of a majority of the Registrable Securities being sold in such registered offering reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration reasonably request;statement), which letter or letters shall be addressed to the underwriters; and
(to) provide a legal opinion of the Parent’s Company's outside counsel, dated the effective date of such registration statement (andor, if such registration includes an underwritten Public Offeringpublic offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion and other documents shall be addressed to the underwriters;
(u) if underwriters and the Parent files an Automatic Shelf Registration Statement covering any holders of such Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 2 contracts
Sources: Registration Agreement (Synagro Technologies Inc), Registration Agreement (Synagro Technologies Inc)
Registration Procedures. In connection with Whenever the Registration Company is obligated to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of register Registrable Securities have requested that relating to any Registrable Securities be registered Tranche pursuant to this Agreement, the Parent Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registrationsubject to Section 4.1, prepare in accordance with cause the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement filed with respect to such Registrable Securities to remain effective until the earlier of (i) the one-year anniversary of the issuance of the Registrable Securities included in such Tranche and use commercially reasonable efforts to cause (ii) the completion of the distribution described in such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)statement;
(b) notify furnish the Shareholders, their underwriters, if any, and their respective counsel, at such times so as to permit their reasonable review, the opportunity to review the registration statement, each holder of Registrable Securities of (A) prospectus included therein or filed with the issuance Commission, and each amendment thereof or supplement thereto, and to consider in good faith incorporating any comments reasonably requested by the Commission Shareholders, their underwriters, if any, and their respective counsel, provided that the Shareholders’, the underwriters’, if any, and their respective counsels’ review of any stop order suspending such documents shall not delay the effectiveness filing of any the registration statement or so long as such parties have been provided a reasonable time to review the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereundersame;
(c) make available for reasonable inspection by, or give reasonable access to, any underwriter and its counsel participating in any disposition of Registrable Securities all pertinent financial and other records, pertinent corporate documents and properties of the Company, and to cause its senior management to participate in such management presentations and one roadshow as such underwriters may reasonably request (provided that such managers are given reasonable advanced notice of such presentations and roadshows and that such managers shall only be obligated to participate in one roadshow of reasonably customary duration) and to cause the Company’s directors, officers and employees to supply all information reasonably requested by any such underwriter in connection with the offering thereunder;
(d) furnish, without charge, to the Shareholders and to the underwriters of the securities being registered such number of copies of the registration statement, preliminary prospectus, final prospectus and other documents incident thereto as such underwriters and the Shareholders from time to time may reasonably request;
(e) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act and applicable state securities laws with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such registration statement under such other securities laws or state blue sky laws of such U.S. jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions Shareholders for the distribution of the Registrable Securities owned covered by such seller (the registration statement; provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or (iii) jurisdictions or to subject itself to taxation in any such jurisdiction)states or jurisdictions wherein it would not but for the requirements of this paragraph (f) be required to do so;
(g) promptly enter into customary agreements in form and substance reasonably satisfactory to the Company (including a customary underwriting agreement in form and substance reasonably satisfactory to the Company, if the offering is to be underwritten, in whole or in part);
(h) notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Shareholders 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 contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances then existing and, at the request of any such sellerShareholder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller Shareholder a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were madethen existing; provided that, not misleadingupon receipt of such notice from the Company, the Shareholders will forthwith discontinue disposition of their Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Shareholders receive the copies of the supplemented or amended prospectus covering such Registrable Securities (and the Shareholders shall return to the Company all copies of the unsupplemented or unamended prospectus covering such Registrable Securities);
(mi) otherwise use its commercially reasonable efforts to comply with list all applicable rules and regulations Registrable Securities covered by such registration statement on the Nasdaq or on such other securities exchange on which shares of the CommissionCommon Stock are then currently listed;
(nj) permit prevent the issuance of any holder order suspending the effectiveness of a registration statement or suspending the qualification (or exemption from qualification) of any of the Registrable Securities whoincluded therein for sale in any U.S. jurisdiction, in its good faith judgment (based on the advice of counsel)and, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale in any U.S. jurisdiction, the Parent shall Company will use its commercially reasonable efforts to promptly to obtain the withdrawal of such order;
(pk) use its commercially reasonable efforts obtain “cold comfort” letters and updates thereof reasonably satisfactory to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter underwriters from the Parent’s independent certified public accountants and of the Company, addressed to each of the underwriters, such letters to be in customary form and covering such matters of the type customarily covered by in “cold comfort comfort” letters as the underwriters in such registration reasonably requestconnection with underwritten offerings;
(tl) obtain opinions of independent counsel to the Company reasonably satisfactory to the managing underwriters, addressed to each of the underwriters covering the matters customarily covered in opinions of issuer’s counsel requested in underwritten offerings; and
(m) provide a legal opinion of the Parent’s outside counseltransfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, dated in each case not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Central European Distribution Corp), Registration Rights Agreement (Central European Distribution Corp)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 3.3, 3.4 or 3.5 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 3.3, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities including executing an undertaking to file post-effective amendments and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)distribution contemplated thereby;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) specified herein and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each underwriter such number of copies of the registration statement and each such amendment and supplement thereto (in each case including all exhibits) and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such registration statement under such other the securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions sellers of the Registrable Securities owned by such seller (provided or, in the case of an underwritten public offering, the managing underwriter reasonably shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) jurisdiction, unless the Company is already subject itself to taxation service in any such jurisdiction);
(e) use its commercially reasonable best efforts to list the Registrable Securities covered by such registration statement with any securities exchange or quotation service on which the Common Stock of the Company is then listed;
(f) comply with all applicable rules and regulations under the Securities Act and Exchange Act;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such seller, the Parent and promptly shall prepare, file with the Commission prepare and furnish to each such seller and underwriter a reasonable number of copies of a supplement prospectus supplemented or amendment to such prospectus amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(h) cause all if the offering is underwritten and at the request of any seller of Registrable Securities, use its commercially reasonable best efforts to furnish on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters to such effects as reasonably may be requested by counsel for the underwriters, and executed counterparts of such opinion addressed to the sellers of Registrable Securities to be listed on each securities exchange on which similar securities issued the same effects as requested by counsel for the underwriters, and (ii) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable Securities, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, reasonable access to all financial and other records, pertinent corporate and business documents and properties of the Parent Company, as shall be necessary to enable them to exercise their due diligence responsibilitysuch parties may reasonably request, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lj) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects cooperate with the selling holders of Registrable Securities Actand the managing underwriter, is filed if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, such certificates to be in accordance with such denominations and registered in such names as such holders or the Securities Act managing underwriter may request at least two (2) business days prior to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby any sale of Registrable Securities; and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(nk) permit any holder of Registrable Securities whoSecurities, which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
. For purposes of this Agreement, the period of distribution of Registrable Securities in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Registrable Securities in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Securities covered thereby or one hundred eighty (o180) days after the effective date thereof, provided, however, in the event of the issuance case of any stop order suspending registration of Registrable Securities on Form S-3 or a comparable or successor form which are intended to be offered on a continuous or delayed basis, such one hundred eighty (180) day period shall be extended, if necessary, to keep the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause effective until all such Registrable Securities covered by such registration statement to be registered with are sold, provided that Rule 415, or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold any successor rule under the registration statement Securities Act, permits an offering on a continuous or delayed basis, and enable such securities provided further that applicable rules under the Securities Act governing the obligation to be file a post-effective amendment, permit, in such denominations and registered in such names as lieu of filing a post-effective amendment which (y) includes any prospectus required by Section 10(a)(3) of the managing underwriter, Securities Act or agent, if any, (z) reflects facts or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter events representing a material or agent participating fundamental change in the disposition of such Registrable Securities and their respective counsel information set forth in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters incorporation by reference of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is information required to be kept effectiveincluded in (y) and (z) above contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration statement. In connection with each registration hereunder, the sellers of Registrable Securities will furnish to the Company in writing such information requested by the Company with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with Federal and applicable state securities laws.
Appears in 2 contracts
Sources: Investor Rights Agreement (Higher One Holdings, Inc.), Series E Preferred Stock Purchase Agreement (Higher One Holdings, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability reasonably satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller of Restricted Stock, use its best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Parent promptly shall prepareSecurities Act and that (A) to the best knowledge of such counsel, file no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the Commission requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or schedules contained therein) and furnish (C) to each such other effects as reasonably may be requested by counsel for the underwriters or by such seller or its counsel and (ii) a reasonable number of copies of a supplement or amendment letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such prospectus so seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as thereafter delivered to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the purchasers period ending no more than five business days prior to the date of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hletter) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kh) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by to each seller of Restricted Stock and to any underwriter participating in such seller, underwriter, attorney, accountant or agent in connection with distribution such reasonable number of copies of the registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related preliminary prospectus, shall not contain any untrue statement final prospectus, and such other documents as such seller of a material fact Restricted Stock or omit underwriter may reasonably request in order to state a material fact necessary to make facilitate the statements therein, in light public offering. For purposes of the circumstances under which they were made, not misleading;
(mSection 7(a) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations 7(b) and of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counselSection 4(c), could reasonably be expected to the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be an underwriter or a controlling Person deemed to extend until the earlier of the Parent to participate in sale of all Restricted Stock covered thereby and 120 days after the preparation effective date thereof. In connection with each registration hereunder, the sellers of such registration or comparable statement and to require the insertion therein of material furnished Restricted Stock will furnish to the Parent Company in writing, which in writing such information with respect to themselves and the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Boingo Wireless Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any Registrable Shares under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany will:
(a) except in connection with a Piggyback Registrationas expeditiously as possible, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purposeas expeditiously as possible, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Shares covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Shares and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Registrable Shares covered by such registration statement;
(d) furnish use its best efforts to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in Shares covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Registrable Shares or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or jurisdiction;
(iiie) subject itself use its best efforts to taxation in list the Registrable Shares covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such jurisdiction)Registrable Shares, not later than the effective date of such registration statement;
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Shares and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in light of the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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 misleadingcircumstances then existing;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesShares, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement. The rights granted pursuant to this subsection (h) may not be assigned or otherwise conveyed by such person or by any subsequent transferee of any such rights without the written consent of the Company, which consent shall not be unreasonably withheld; provided that the Company may refuse such written consent if the proposed transferee is a competitor of the Company as determined by the Company’s Board of Directors; and provided further, that no such written consent shall be required if the transfer is made to a party who is not a competitor of the Company and who is a parent, subsidiary, affiliate, partner or group member of such person;
(li) take advise each selling holder of Registrable Shares, 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 all reasonable actions efforts to ensure that prevent the issuance of any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act stop order or to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingobtain its withdrawal if such stop order should be issued;
(mj) otherwise use its commercially reasonable efforts cooperate with the selling holders of Registrable Shares and the managing underwriters, if any, to comply with all applicable rules facilitate the timely preparation and regulations delivery of certificates representing Registrable Shares to be sold, such certificates to be in such denominations and registered in such names as such holders or the Commission;managing underwriters may request at least two business days prior to any sale of Registrable Shares; and
(nk) permit any holder of Registrable Securities whoShares which holder, in its good faith the judgment (based on of the advice of counsel), could reasonably be expected to Company might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o, subject to review by the Company and its counsel after consultation with such holder. For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of distribution of Registrable Shares in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the event distribution of all securities purchased by it, and the period of distribution of Registrable Shares in any other registration shall be deemed to extend until the earlier of the issuance sale of any stop order suspending all Registrable Shares covered thereby and 120 days after the effectiveness of a effective date thereof. In connection with each registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionhereunder, the Parent sellers of Registrable Shares will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Investor Rights Agreement (Versant Ventures II LLC), Investor Rights Agreement (Helicos Biosciences Corp)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have Whenever any Holder has requested that any Registrable Securities Shares be registered pursuant to this Stockholders Agreement, the Parent shall Company will use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities Shares in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall Company will as expeditiously as reasonably possible:
3.4.1 Prepare and file with the SEC a registration statement on any appropriate form (asubject to Section 3.1.1(b)) except in connection with a Piggyback Registration, prepare in accordance with under the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities Shares and use its commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare 3.4.2 Prepare and file with the Commission SEC such amendments amendments, post-effective amendments, and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of not less than 30 days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments);
3.4.3 Furnish to each Holder of Registrable Shares and the underwriters of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus any documents incorporated by reference therein and such other documents as such seller Holder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Securities Shares owned by such seller;
Holder or the sale of such securities by such underwriters (e) during any period in which a prospectus is required it being understood that, subject to be delivered under Section 3.5 and the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) requirements of the Securities ActAct and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each Holder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(f) use 3.4.4 Use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect (to the extent required by law) such Registrable Securities Shares under such other securities or blue sky laws of such jurisdictions as the lead managing underwriter reasonably requests; use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Applicable Approving Party reasonably requests period in 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 seller each Holder to consummate the disposition in such jurisdictions of the Registrable Securities Shares owned by such seller (provided Holder in such jurisdictions; provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f), subparagraph or (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing 3.4.5 Advise each seller Holder of such Registrable Securities Shares who is a selling securityholder in such registration, promptly after the Company shall receive notice or obtain knowledge thereof, (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, issuance of any request stop order by the Commission for SEC suspending the amendment or supplementing effectiveness of such registration statement or (ii) of the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
3.4.6 Promptly notify each Holder who is a selling securityholder in such registration and each underwriter and (if requested by any such Person) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or "blue sky" laws or the initiation of any proceedings for additional informationthat purpose, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as which makes any statement made in a result registration statement or related prospectus untrue in any material respect or which requires the making of which the prospectus included any changes in such registration statement contains an untrue statement of a material fact statement, prospectus or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus documents so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall they will not 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, in light of the circumstances under which they were made, therein not misleading;
(m) otherwise use its commercially reasonable efforts , and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities whosuch prospectus so that, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished as thereafter deliverable to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition purchasers of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration Shares, such prospectus will not contain any untrue statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.of
Appears in 2 contracts
Sources: Post Merger Stockholders Agreement (Specialty Teleconstructors Inc), Post Merger Stockholders Agreement (Hicks Thomas O)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Section 2.01, Section 2.02 and Section 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (A) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Participating Investors, if any, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Participating Investors and their respective counsel and (B) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which any Participating Investor or the underwriters, if any, shall reasonably object;
(bii) notify each holder of as promptly as practicable file with the SEC a Registration Statement relating to the Registrable Securities of including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (A) reasonably requested by any Participating Investor, (B) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (C) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) if, at any time, the receipt by representations and warranties of the Parent or its counsel Company in any applicable underwriting agreement cease to be true and correct in all material respects, (E) of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used in connection therewith as may Participating Investor(s) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (Section 2.01(c) or Section 2.02(b), whichever is applicable, provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates or book-entry positions representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than two (2) Business Days after the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered and provide the applicable transfer agent with printed certificates, if applicable, for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company;
(xiv) 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;
(xv) 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 statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of Section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares is then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each interdealer quotation system on which any of the period during which such Automatic Shelf Registration Statement Company Shares is required to remain effectivethen quoted;
(vxxii) if the Parent does not pay the filing fee covering the Registrable Securities make available upon reasonable notice at the time an Automatic Shelf reasonable times and for reasonable periods for inspection by any Participating Investor, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee Participating Investor(s) or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available, upon reasonable notice at reasonable times, to discuss the business of the Company and to supply all information reasonably requested by any such time Person in connection with such Registration Statement as shall be 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 times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, and of which determination such Person is notified, unless (A) the release of such information is required by law or by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) 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, (C) such information is or becomes available to such Person on a nonconfidential basis from a source other than the Company, (D) such information is independently developed by such Person or (E) such Person is advised by counsel that disclosure is required by law, rule or regulation; and
(wxxiii) if in the case of an Automatic Shelf Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.
(b) 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 Participating 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, upon delivery of any notice by the Company of the happening of any event of the kind described in Section 2.05(a)(iv)(C), (D), or (E) or Section 2.05(a)(v), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement has been outstanding for at least three until (3i) years, at the end such Participating Holder’s receipt of the third yearcopies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(v), refile a new Automatic Shelf Registration Statement covering (ii) such Participating Holder is advised in writing by the Registrable SecuritiesCompany that the use of the Prospectus or Issuer Free Writing Prospectus, andas the case may be, if at any time when may be resumed, (iii) such Participating Holder is advised in writing by the Parent is required to re-evaluate its WKSI status Company of the Parent determines that it is not a WKSItermination, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep expiration or cessation of such registration statement effective order or suspension referenced in Section 2.05(a)(iv)(C), (including by filing a new Resale Shelf Registration D), or Shelf Registration(E) or Section 2.05(a)(v), if necessary) during the period throughout which such registration statement is required to be kept effective.su
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortegra Group, Inc), Registration Rights Agreement (Tiptree Inc.)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02 and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effectiveProspectus, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectiveany Issuer Free Writing Prospectus, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Sponsor Holders exercising demand rights, if applicable, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and such Sponsor Holders and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus, or amendments or supplements thereto to, which such Sponsor Holders or the underwriters, if any, shall reasonably object;
(bii) notify each holder as promptly as practicable and in accordance with the other provisions of this Agreement, file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by the Sponsor Holders exercising demand rights, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (z) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus, or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or jurisdiction, and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus, or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus, or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used Sponsor Holders (to the extent the Sponsor Holders are participating in connection therewith as may such Registration) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (provided Section 2.02(b), provided, that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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 or any other required depository;
(xiv) 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;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Sponsor Holders exercising demand rights or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of Section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Sponsor Holders, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant, or other agent retained by such fee at Sponsor Holders or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; 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 times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company, or (z) such information is independently developed by such Person;
(xxiii) in the case of an Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;
(xxiv) cooperate with the Holders subject to the Registration Statement and with the managing underwriter or agent, if any, to facilitate any Charitable Gifting Event and to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to permit any such recipient Charitable Organization to sell in the public offering if it so elects; and
(wxxv) if an Automatic Shelf otherwise comply in all material respects with all applicable rules and regulations of the SEC in connection with any Registration Statement has been outstanding for at least three and the disposition of all Registrable Securities covered by such Registration Statement.
(3b) yearsThe 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 Participating 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, at upon delivery of any notice by the end Company of the third yearhappening of any event of the kind described in Section 2.05(a)(iv)(C), refile a new Automatic Shelf Registration Statement covering the Registrable Securities(D), and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective or (including by filing a new Resale Shelf Registration E) or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.Section 2.05(a)(v),
Appears in 2 contracts
Sources: Registration Rights Agreement (SOLV Energy, Inc.), Registration Rights Agreement (SOLV Energy, Inc.)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Section 9 hereof, the Company shall:
(a) prepare and file with the Commission a Registration Statement on the appropriate form under the Securities Act, which form (i) shall be selected by the Company and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be effected pursuant to the Resale Shelf Registration Statementfiled therewith, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable efforts to effect the registration cause such Registration Statement to become effective and the sale of such Registrable Securities remain effective in accordance with Section 9 hereof; provided, however, that before filing a Registration Statement or prospectus or any amendment or supplement thereto, the intended method Company shall afford one firm of disposition thereof, counsel for the Selling Holders a reasonable opportunity to review and pursuant thereto the Parent shall as expeditiously as reasonably possible:comment on such document.
(ab) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses post-effective amendments to each Registration Statement as may be necessary to comply with applicable securities laws, the provisions of the Securities Act and rules thereunder with respect to the disposition of all securities covered by such Registration Statement and to keep such Registration Statement effective for such time period may be required by any applicable underwriting agreement or, if not so required, as determined by the Company in its sole discretion (the "Applicable Period"), cause each prospectus to be supplemented by any required prospectus supplement during such Applicable Period and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act;
(c) furnish to each Holder of Registrable Securities and to each underwriter of an underwritten offering of Registrable Securities, if any, without charge, as many copies of each prospectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents as such Holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities;
(d) use commercially its reasonable best efforts to cause (i) register or qualify the Registrable Securities under all applicable state securities or Blue Sky laws of such registration statement jurisdictions as any Holder thereof covered by a Registration Statement shall reasonably request in writing by the time the applicable Registration Statement is declared effective by the Commission and (ii) 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 the offer and transfer of any of the Registrable Securities in any jurisdiction at the earliest possible moment; provided, however, that the Company shall not be required to become effective(i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 9.4(d), or (2ii) file any general consent to service of process or (iii) subject itself to taxation in the case an effective Resale Shelf Registration Statement any such jurisdiction if it is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale not so subject;
(e) notify each Holder of Registrable Securities pursuant to promptly and, if requested by such Resale Shelf Holder, confirm such advice in writing
(i) when a Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or has become effective and when any post-effective amendments or and supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)thereto become effective;
(bii) notify of any request by the Commission or any state securities authority for amendments and supplements to a Registration Statement and prospectus or for additional information, in each holder case after the Registration Statement has become effective;
(iii) of Registrable Securities of (A) the issuance or threatened issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of any registration statement a Registration Statement or the initiation of any proceedings for that purpose;
(iv) if, (B) between the receipt by effective date of a Registration Statement and the Parent closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or its counsel of other similar agreement, if any, relating to the offering cease to be true and correct in all material respects or if the Company receives 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 (C) the effectiveness of each registration statement filed hereunder;; and
(cv) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as during the period a result of Registration Statement is effective which the prospectus included makes any statement made in such registration statement contains an Registration Statement or the related prospectus untrue statement in any material respect or which requires the making of a material fact any changes in such Registration Statement or omits any fact necessary prospectus in order to make the statements therein not misleading, and, ;
(f) use reasonable commercial efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the request of any such seller, the Parent promptly shall prepare, file with the Commission and earliest possible moment;
(g) furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (with documents incorporated therein by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and registered in such seller a names as the selling Holders may reasonably request at least two business days prior to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 9.4(e)(v) hereof during the Applicable Period, use reasonable number of copies of efforts to prepare a supplement or post-effective amendment to such a Registration Statement or the related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall 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; provided, however, that the Company shall not be required to amend or supplement a Registration Statement, any related prospectus or any document incorporated therein by reference in the event that, and for so long as, an event occurs and is continuing as a result of which the Registration Statement, any related prospectus or any document incorporates therein by reference as then amended or supplemented would, in the Company's good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances under which they are made. The Company agrees 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. At such time as such public disclosure is otherwise made or the Company determines in good faith that such disclosure is not necessary, the Company agrees promptly to notify each Holder of such determination to amend or supplement the prospectus if necessary to correct any untrue statement or omission therein and to furnish each Holder such numbers of copies of the prospectus as so amended or supplemented as each Holder may reasonably request;
(j) obtain a CUSIP number for the Common Stock;
(i) make reasonably available for inspection by a representative of, and counsel for, any underwriter participating in any deposition pursuant to a Registration Statement, all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors and employees to supply all relevant information reasonably requested by such representative, counsel or any such underwriter in connection with any such Registration Statement;
(l) if requested by the Holders in connection with any Registration Statement, shall use reasonably commercial efforts to cause (w) counsel for the Company to deliver an opinion relating to the Registration Statement and the Common Stock, in customary form, in the event and to the extent the same is furnished to any other Stockholder or underwriter in connection with such Registration Statement (x) its officers to execute and deliver all customary documents and certificates requested by a representative of the Holders or any underwriter, as applicable in the event and to the extent the same is furnished to any other Stockholder or underwriter in connection with such Registration Statement and (y) its independent public accountants to provide a comfort letter in customary form in the event and to the extent the same is furnished to any other Stockholder or underwriter in connection with such Registration Statement. The Company may, as a condition to such Holder's participation in any Registration Statement, require each Holder of Registrable Securities to (i) furnish to the Company such information regarding the Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing and (ii) agree in writing to be bound by this Warrant;
(m) otherwise use its commercially reasonable efforts make available for inspection by any Selling Holder, any underwriter participating in such offering and the representatives of such Selling Holder (but not more than one firm of counsel to comply with such Selling Holders), all applicable rules financial and regulations other information as shall be reasonably requested by them, and provide the Selling Holder, any underwriter participating in such offering and the representatives of such Selling Holder the opportunity to discuss the business affairs of the CommissionCompany with its principal executives and independent public accountants who have certified the audited financial statements included in such Registration Statement, in each case all as necessary to enable them to exercise their due diligence responsibility under the Securities Act; provided, however, that information that the Company determines, in good faith, to be confidential and which the Company advises such Person in writing, is confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably satisfactory to the Company or the related Selling Holder of Registrable Securities agrees to be responsible for such Person's breach of confidentiality on terms reasonably satisfactory to the Company;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected provide and cause to be deemed to be an underwriter or maintained a controlling Person of the Parent to participate in the preparation of such registration or comparable statement transfer agent and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement registrar for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; and
(o) use all reasonable efforts to cause the Registrable Securities covered by such Registration Statement (i) if the Common Stock is then listed on a securities exchange or included for quotation in a recognized trading market, to continue to be so listed or included for a reasonable period of time after the offering, and (ii) to be registered with or approved by such other United States or state governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the sellers thereof Selling Holders of Registrable Securities to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 2 contracts
Sources: Warrant Agreement (North Atlantic Trading Co Inc), Warrant Agreement (North Atlantic Trading Co Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Company is required to effect any registration under the Securities have requested that any Registrable Securities be registered pursuant to this AgreementAct as provided in Sections 2.1(a), 2.1(g) or 2.2 hereof, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereofCompany shall, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) within the time periods set forth herein the requisite registration statement to effect such registration, which registration statement shall comply as to form in all material respects with the case requirements of the applicable form and include all financial statements required by such request requires a subsequent Resale Shelf Registration Statement, a registration statementform to be filed therewith, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to become as soon as reasonably possible and remain effective; provided, however, that the Company may discontinue any registration of its securities that are not Registrable Shares (and, under the circumstances specified in Sections 2.2(a)(ii) or (22.7(b) in hereof, its securities that are Registrable Shares) at any time prior to the case an effective Resale Shelf Registration Statement is on file with date of the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements relating thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus, including any free writing prospectus used as defined in connection therewith Rule 405 under the Securities Act, as may be necessary to keep such registration statement effective for a period ending when all and to comply with the provisions of the securities Securities Act and the Exchange Act with respect to the disposition of all Registrable Shares covered by such registration statement until such time as all of such Registrable Shares have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statement; provided, however, that with respect to each free writing prospectus or other materials to be delivered to purchasers at the time of sale of the Registrable Shares, the Company shall (i) ensure that no Registrable Shares be sold “by means of” (as defined in Rule 159A(b) under the Securities Act) such free writing prospectus or other materials without the prior written consent of the sellers of the Registrable Shares covered by such registration statement, which free writing prospectus or other materials shall be subject to the review of counsel to such sellers, and (ii) make all required filings of all free writing prospectuses or other materials with the Commission as are required;
(dc) furnish to each seller of Registrable Securities thereunder Shares covered by such registration statement and each underwriter, if any, such number of copies of such drafts and final conformed versions of such registration statement, statement and of each such amendment and supplement theretothereto (in each case including all exhibits and any documents incorporated by reference, except to the extent such exhibits and documents are currently available via the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”)), such number of copies of such drafts and final versions of the prospectus included contained in such registration statement (including each preliminary prospectus and any summary prospectus)) and any other prospectus filed under Rule 424 under the Securities Act, each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents documents, as such seller any Selling Shareholder or any underwriter may reasonably request in order writing (which, in the case of draft registration statements and prospectuses, shall be furnished at least five (5) days prior to facilitate filing, and which shall be subject to the reasonable review and comment of each seller of Registrable Shares);
(d) use its commercially reasonable efforts (i) to register or qualify all Registrable Shares and other securities, if any, covered by such registration statement under such other securities or blue sky laws of such states or other jurisdictions of the United States of America as the sellers of Registrable Shares covered by such registration statement shall reasonably request in writing, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect and (iii) to take any other action that may be necessary or reasonably advisable to enable such sellers to consummate the disposition in such jurisdictions of the Registrable Securities owned Shares to be sold by such sellersellers, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subsection (d) be obligated to be so qualified, to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) during any period in which a prospectus is required use its commercially reasonable efforts to cause all Registrable Shares and other securities, if any, covered by such registration statement to be delivered under registered with or approved by such other Governmental Authorities as may be necessary in the Securities Act, promptly file all documents required opinion of counsel to be filed with the Commission, including pursuant Company and counsel to Sections 13(a), 13(c), 14 the seller or 15(d) sellers of Registrable Shares to enable the Securities Actseller or sellers thereof to consummate the disposition of such Registrable Shares;
(f) use its commercially reasonable efforts to registerobtain and furnish to each Selling Shareholder, qualify and each underwriter, if any, a signed (i) opinion of counsel for the Company and addressed to the underwriters, reasonably satisfactory (based on the customary form and substance of opinions of issuers’ counsel customarily given in such an offering, including a negative assurance letter) in form and substance to the managing underwriters, and (ii) comfort letter, dated the effective date of such registration statement and dated the date of the closing under the underwriting agreement and, in each case, addressed to the underwriters and signed by the independent registered public accounting firm that certified the Company’s financial statements included or secure incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of comfort letters of issuers’ independent registered public accounting firm customarily given in such an exemption from registration offering) in form and substance to the managing underwriter(s), in each case of clauses (i) and (ii), covering substantially the same matters with respect to such Registrable Securities under such other securities or blue sky laws registration statement (and the prospectus included therein) and, in the case of the independent registered public accounting firm’s comfort letter, with respect to events subsequent to the date of such jurisdictions financial statements, as are customarily covered in opinions of issuer’s counsel and in the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable independent registered public accounting firm’s comfort letters delivered to enable such seller to consummate the disposition underwriters in such jurisdictions underwritten Public Offerings of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)securities;
(g) use its commercially reasonable efforts to deliver promptly to participating Shareholders and the managing underwriters, if any, copies of all correspondence between the Commission and the Company, its counsel or its auditors, and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement (except to the extent such correspondence is currently available via ▇▇▇▇▇) and permit those Shareholders to do such investigation with respect to information contained in or omitted from the registration statement as they deem reasonably necessary for the purpose of conducting due diligence with respect to the Company; provided that any such investigation shall not interfere unreasonably with the Company’s business;
(h) notify in writing each seller Selling Shareholder, managing underwriter(s) and other holders of such Registrable Securities (i) after it receives notice thereof, of the date and time when securities covered by such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereofif any, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the written request of any such sellerseller of Registrable Shares, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus prospectus, as supplemented or amended, shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(hi) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement relating to the Registrable Shares at the earliest possible moment;
(j) otherwise comply with all applicable rules and regulations of the Commission and any other Governmental Authority having jurisdiction over the offering, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first full calendar month after the effective date of such registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(k) use its commercially reasonable efforts to cause all such Registrable Securities Shares covered by a registration statement to be listed on each the Designated Exchange, if the listing of such Registrable Shares is then permitted under the rules of such exchange, or another national securities exchange on which similar securities issued by if the Parent are listing is not then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRApermitted;
(il) provide a transfer agent and registrar for all such the Registrable Securities not Shares covered by a registration statement no later than the effective date of such registration statementthereof;
(jm) enter into and perform such customary agreements (including an underwriting agreements agreement in customary form) and take all such other actions as the Applicable Approving Party Selling Shareholder or Selling Shareholders, as the underwriterscase may be, if any, owning at least a majority of the Registrable Shares covered by such registration statement shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Shares, including customary indemnification and contribution to the effect and to the extent provided in Section 2.8 hereof;
(includingn) if requested by the managing underwriter(s) or the Selling Shareholder or Selling Shareholders, as the case may be, owning at least a majority of the Registrable Shares being sold in connection with an underwritten Public Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter(s) and the any such Selling Shareholders of a majority of the Registrable Shares being sold reasonably request to be included therein relating to the plan of distribution with respect to such Registrable Shares, including without limitation, effecting a stock split or a combination information with respect to the number of shares Registrable Shares being sold to such underwriters, the purchase price being paid therefore by such underwriters and preparing for and participating with respect to any other terms of the underwritten Public Offering of the Registrable Shares to be sold in such number offering; and make all required filings of “road shows”, investor presentations and marketing events such prospectus supplement or post-effective amendment as soon as possible after being notified of the underwriters managing matters to be incorporated in such offering may reasonably request)prospectus supplement or post-effective amendment;
(ko) make available for inspection by enable such Registrable Shares to be in such share amounts and registered in such names as the managing underwriter(s) or, if none, the Selling Shareholders holding a majority of the Registrable Shares being sold, may request at least three (3) Business Days prior to any seller sale of Registrable SecuritiesShares to the underwriters, subject to the mandatory provisions of Dutch law and the Company’s articles of association; and
(p) if the registration shall be for an underwritten Public Offering, cause management of the Company to provide Customary Cooperation, if so requested by the Selling Shareholder or Selling Shareholders, as the case may be, owning at least a majority of the Registrable Shares being sold. As a condition to the obligations of the Company to complete any underwriter participating in any disposition registration pursuant to this Agreement with respect to the Registrable Shares of a Shareholder, such registration statement Shareholder must furnish to the Company in writing such information (the “Shareholder Information”) regarding itself, the Registrable Shares held by it and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties the intended methods of disposition of the Parent Registrable Shares held by it as shall be is necessary to enable them to exercise their due diligence responsibility, effect the registration of such Shareholder’s Registrable Shares and cause is requested in writing by the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all Company. The Shareholder shall promptly notify the Company of any inaccuracy or change in information reasonably requested previously furnished by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act Shareholder to the extent required therebyCompany or of the occurrence of any event, is retained in accordance with the Securities Act either case as a result of which any prospectus relating to the extent required thereby and, when taken together with the related prospectus, shall not Registrable Shares contains or would contain any an untrue statement of a material fact or omit omits to state a 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;
(m) otherwise use its commercially reasonable efforts , and promptly furnish to comply with all applicable rules the Company any additional information required to correct and regulations update any previously furnished information or required so that such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the Commission;
(n) permit any holder circumstances under which they were made, not misleading. Each Shareholder agrees that as of the date that a final prospectus is made available to it for distribution to prospective purchasers of Registrable Securities whoShares, it shall cease to distribute copies of any preliminary prospectus prepared in its good faith judgment (based on connection with the advice offer and sale of counsel)such Registrable Shares. Each Shareholder further agrees that, could reasonably be expected to be deemed to be an underwriter or a controlling Person upon receipt of any notice from the Company of the Parent to participate in the preparation happening of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the any event of the issuance kind described in subsection (h) of any stop order suspending the effectiveness of a registration statementthis Section 2.4, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent Shareholder shall use its commercially reasonable efforts promptly to obtain the withdrawal of forthwith discontinue such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the Shareholder’s disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by Shares pursuant to the registration statement and the managing underwriter or agent, if any, relating to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if Shares until such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the ParentShareholder’s independent public accountants and addressed to the underwriters, in customary form and covering such matters receipt of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion copies of the Parent’s outside counsel, dated the effective date supplemented or amended prospectus contemplated by subsection (h) of such registration statement (this Section 2.4 and, if so directed by the Company, shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such registration includes an underwritten Public Offering, dated the date Shareholder’s possession of the closing under prospectus relating to such Registrable Shares current at the underwriting agreement), with respect time of receipt of such notice. If any event of the kind described in subsection (h) of this Section 2.4 occurs and such event is the fault solely of the Shareholder(s) due to the inaccuracy of the Shareholder Information provided by such Shareholder(s) for inclusion in the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectussuch Shareholder(s) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed pay all Expenses attributable to the underwriters;
preparation, filing and delivery of any supplemented or amended prospectus contemplated by subsection (uh) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivethis Section 2.4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cnova N.V.), Registration Rights Agreement (Cnova N.V.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 9(b) to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealerSection 9(c)(i) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(iii) furnish to each selling Holder and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and amendment thereto) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(div) furnish use commercially reasonable to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (shall request; provided that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of use commercially reasonable to list the date and time when Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(vi) immediately notify each selling Holder and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationstatement, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, andand each Holder hereby covenants and agrees, at upon receipt of such notification, to discontinue disposition of Restricted Stock pursuant to such registration statement until the request time of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number effectiveness of copies of an amendment thereto or a supplement or amendment to such prospectus included therein as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Stock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(hvii) cause if the offering is underwritten and at the request of any selling Holder, furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (1) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such selling Holder, stating that such registration statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Act (except that such Registrable Securities counsel need not express any opinion as to financial statements contained therein) and (C) to such other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such selling Holder or its counsel; and (2) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters and to such selling Holder, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingAct and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kviii) make available for inspection by any seller of Registrable Securitieseach selling Holder, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller selling Holder or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such sellerselling Holder, underwriter, attorney, accountant or agent in connection with such registration statement;
. For purposes of Section 9(c)(i) and 9(c)(ii), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby and one hundred twenty (l120) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in days after the effective date thereof. In connection with any Piggyback Registration hereunder complies each registration hereunder, the selling Holders will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws and to make the registration statement correct, accurate and complete in all material respects with respect to such selling Holders' participating in the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, offering; provided that this requirement shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be limit any disclosure obligation arising out of any selling Holder's relationship to the Company if one of such Holder's agents or affiliates is an underwriter officer, director or a controlling Person control person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writingCompany. In addition, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required underwritten registration, the selling Holders shall, if requested by the Company, execute such other underwriting related agreements, which are reasonably satisfactory to them and which shall contain such provisions as may be made customary and reasonable in order to accomplish the registration of the Restricted Stock. In connection with FINRA;
(seach registration pursuant to Section 9(b) if such registration includes covering an underwritten public offering, use its commercially reasonable efforts the Company and each selling Holder agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to the underwriters, managing underwriter in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Warrant Agreement (Egenera, Inc.), Warrant Agreement (Egenera, Inc.)
Registration Procedures. (a) In connection with the Registration Company's obligations with respect to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders any registration of Registrable Securities have requested that any Registrable Securities be registered pursuant to this AgreementSection 2 hereof, the Parent Company shall use its commercially reasonable best efforts to effect the or cause such registration and to permit the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof described in the registration statement relating thereto and to maintain the effectiveness of such registration statement for a period of six calendar months after the date of effectiveness of such registration statement or, if shorter, until the disposition of all of the Registrable Securities covered by such registration statement is completed. In connection therewith, the Company shall, as soon as reasonably possible:
(i) prepare and file with the Commission a registration statement with respect to such registration on any form which may be utilized by the Company and which shall permit the disposition of the Registrable Securities in accordance with the intended method of disposition or methods thereof, as specified in writing by the Holders thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or effective as soon as reasonably possible thereafter;
(2ii) in the case an effective Resale Shelf Registration Statement is on prepare and file with the Commission such amendments and effectivesupplements to such registration statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such registration statement and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such registration statement, an applicable prospectus and furnish to the underwriters, if any, of the Registrable Securities to be registered, the sales or prospectus supplement for placement agent, if any, therefor, and a representative of the resale Holders of Registrable Securities pursuant registered thereby copies of any such supplement or amendment prior to its being used and/or filed with the Commission;
(iii) comply with the provisions of the Securities Act applicable to issuers with respect to the disposition of all of the Registrable Securities covered by such registration statement in accordance with the intended methods of disposition by the Holders thereof set forth in such registration statement, in any such case for a period of six calendar months after the date of effectiveness of such registration statement or, if shorter, until such disposition is completed;
(iv) provide (A) any Holder registering more than 10% of the Registrable Securities to be registered, (B) the underwriters (which term, for purposes of this Agreement, shall include a person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, of the Registrable Securities to be registered, (C) the sales or placement agent, if any, therefor, (D) counsel for such underwriters or agent, and (E) counsel for the Holders thereof the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration statement, and throughout the period specified in Section 3(a)(iii) hereof, make available for inspection by the parties referred to in Section 3(a)(iv), subject to execution and delivery of a confidentiality agreement in customary form in favor of the Company by the Holders seeking to exercise such inspection rights, above such financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such Resale Shelf Registration Statement inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in such Section, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act;
(provided that at least five vi) promptly notify the selling Holders of Registrable Securities, the sales or placement agent, if any, therefor and the managing underwriter or underwriters, if any, thereof and confirm such advice in writing, (5A) Business Days before filing a 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 such registration statement or any post-effective amendment, when the same has become effective, (B) of any comments by the Commission and by the Blue Sky or securities commissioner or regulator of any state with respect thereto or any request by the Commission for amendments or supplements to such registration statement or prospectus or any amendments or supplements theretofor additional information, the Parent shall furnish to counsel selected by the Applicable Approving Party copies (C) of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any such registration statement or the initiation or threatening of any proceedings for that purpose, (BD) if at any time the representations and warranties of the Company contemplated by Section 3(a)(xv) or Section 5 hereof cease to be true and correct in all material respects, (E) of the receipt by the Parent or its counsel 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 or (CF) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending at any time when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered under the Securities Act, that such registration statement, prospectus, prospectus supplement or post-effective amendment, or any document incorporated by reference in connection with any of the foregoing, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any placement or sales agent or any Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such managing underwriter or underwriters, such agent or such Holder specifies should be included therein relating to the terms of the sale of such Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act Securities, including, without limitation, information with respect to the disposition number of all securities covered Registrable Securities being sold by the Holders or agent or to any underwriters, the name and description of the Holders, agent or underwriter, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such registration statement during such period in accordance underwriters and with respect to any other terms of the intended methods offering of disposition the Registrable Securities to be sold by the sellers Holders or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post effective amendment;
(ix) furnish (A) to any Holder registering more than ten percent of the Registrable Securities to be registered in such registration, each placement or sales agent, if any, therefor, each underwriter, if any, thereof set forth and the respective counsel referred to in Section 3(a)(iv) an executed copy of such registration statement, each such amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), and (B) to any Holder of Registrable Securities to be registered in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statementstatement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by any Holder, each amendment agent or underwriter, as the case may be) and supplement thereto, of the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents documents, as any such seller Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by any such seller;
(e) during any period in which a Holder, offered or sold by such agent or underwritten by such underwriter and to permit each Holder, agent and underwriter to satisfy the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) delivery requirements of the Securities Act; and the Company hereby consents to the use of such prospectus (including such preliminary prospectus) and any amendment or supplement thereto by each Holder and by any such agent and underwriter, in each case in the form most recently provided to such party by the Company, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary prospectus) or any supplement or amendment thereto;
(fx) use its commercially reasonable best efforts to register, (A) register or qualify or secure an exemption from registration with respect to such the Registrable Securities to be included in such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Holder and any placement or sales agent, if any, therefor and underwriter, if any, thereof shall reasonably request, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the lead underwriter continuance of offers, sales and dealings therein in such jurisdictions for so long as may be necessary to enable the Holders, agents or the Applicable Approving Party reasonably requests underwriters to complete its distribution of Securities pursuant to such registration statement and do (C) take any and all other acts and things which actions as may be reasonably necessary or advisable to enable such seller the Holders, agents, if any, and underwriters, if any, to consummate the disposition in such jurisdictions of the such Registrable Securities owned by such seller (provided Securities; provided, however, that the Parent Company shall not be required for any such purpose to (iI) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f), 3(a)(x) or (iiII) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gxi) promptly notify in writing use its reasonable best efforts to obtain the consent or approval of each seller of such Registrable Securities (i) after it receives notice thereofgovernmental agency or authority, of the date and time when such registration statement and each post-effective amendment thereto has become effective whether federal, state or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedlocal, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is which may be required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of effect such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, offering or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with connection therewith or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof Holders to offer, or to consummate the disposition of such of, the Registrable Securities;
(qxii) cooperate with the holders of Registrable Securities covered by the registration statement Holders and the managing underwriter or agentunderwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under sold, which certificates shall be printed, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders if required or appropriate and which shall not bear any restrictive legends; and, in the registration statement and case of an underwritten offering, enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriterunderwriters may request at least two business days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not later than the effective date of such registration statement;
(xiv) enter into one or more underwriting agreements, engagement letters, agency agreements, "best efforts" underwriting agreements or similar agreements, as appropriate, and take such other actions in connection therewith as the Holders shall reasonably request in order to expedite or facilitate the disposition of the Registrable Securities registered;
(xv) whether or not an agreement of the type referred to in Section (3)(a)(xiv) hereof is entered into and whether or not any portion of the offering contemplated by such registration statement is an underwritten offering or is made through a placement or sales agent or any other entity, (A) make such representations and warranties to the Holders and the placement or sales agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by therefor and the registration statement underwriters, if any, thereof in form, substance and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel scope as are customarily made in connection with an offering of common stock or other equity securities pursuant to any filings required appropriate agreement and/or to be made with FINRA;
a registration statement filed on the form applicable to such registration; (sB) use its reasonable best efforts to obtain an opinion of counsel to the Company in customary form and covering such matters, of the type customarily covered by such an opinion, as the managing underwriters, if any, and as the Holders may reasonably request, addressed to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof, and dated the effective date of such registration statement (and if such registration includes statement contemplates an underwritten public offeringoffering of a part or all of the Registrable Securities, dated the date of the closing under the underwriting agreement relating thereto); (C) use its commercially reasonable best efforts to obtain a cold comfort "comfort" letter or letters from the Parent’s independent certified public accountants and of the Company addressed to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof, dated (I) the effective date of such registration statement, (II) the effective date of any prospectus supplement, if any, to the prospectus included in such registration statement or post-effective amendment to such registration statement which includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus and (III) (if such registration statement contemplates an underwritten offering pursuant to any prospectus supplement to the prospectus included in such registration statement or post-effective amendment to such registration statement which includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus) dated the date of the closing under the underwriting agreement relating thereto, such letter or letters to be in customary form and covering such matters of the type customarily covered by cold comfort letters of such type; (D) deliver such documents and certificates, including officers' certificates, as may be reasonably requested by the underwriters Holders and the placement or sales agent, if any, therefor and the managing underwriters, if any, thereof to evidence the accuracy of the representations and warranties made pursuant to clause (A) above or those contained in Section 5(a) hereof and the compliance with or satisfaction of any agreements or conditions contained in the underwriting agreement or other agreement entered into by the Company; and (E) undertake such registration reasonably requestobligations relating to expense reimbursement, indemnification and contribution as are provided in Section 6 hereof;
(txvi) provide in the event that (i) any broker-dealer registered under the Exchange Act shall underwrite any Registrable Securities or participate as a legal opinion member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Parent’s outside counselRules of Fair Practice and the By-Laws of the National Association of Securities Dealers, dated Inc. ("NASD")) thereof, whether as a Holder of Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, or (ii) more than 10% of the effective date net offering proceeds, not including underwriting compensation, of such registration statement distribution is intended to be paid to any such broker-dealer or "associated or affiliated persons" of such broker-dealer or "members of the immediate family of such persons" (andeach within the meaning of such Rules), the Company shall take reasonable steps to assist such broker-dealer in complying with the requirements of such Rules and By-Laws, including, without limitation, by (A) if such registration includes an underwritten Public OfferingRules or By-Laws shall so require, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain engaging a WKSI (and not become an ineligible issuer "qualified independent underwriter" (as defined in Rule 405)such Schedule) during to participate in the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end preparation of the third year, refile a new Automatic Shelf Registration Statement covering the registration statement relating to such Registrable Securities, to exercise usual standards of due diligence in respect thereto and, if at any time when portion of the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including offering contemplated by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required an underwritten offering or is made through a placement or sales agent, to be kept effective.recommend the price of such Registra
Appears in 2 contracts
Sources: Registration Rights Agreement (Softbank Holdings Inc Et Al), Registration Rights Agreement (Softbank Holdings Inc Et Al)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant this Agreement to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and of any of the sale of such Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(a) except in connection with a Piggyback Registration, prepare in accordance promptly file with the United States Securities Act and all applicable rules and regulations promulgated thereunder Exchange Commission (the “Commission”) a registration statement (and, in the case of a registration under Section 1 or Section 3, within 60 days following receipt of such requestany request thereunder), file with in form and substance required by the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities lawsSecurities Act, with respect to such Registrable Securities and use its commercially reasonable efforts to cause such that registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such any amendments and supplements to such the registration statement and the prospectus used included in connection therewith the registration statement as may be necessary to keep such the registration statement effective for effective, in the case of a period ending when all firm commitment underwritten public offering, until completion of the distribution of all securities described therein and, in the case of any other offering, until the earlier of (i) the sale of all Registrable Securities covered by thereby or (ii) 180 days after the effective date thereof (and in the case of a registration under Section 1, 365 days);
(c) furnish to Platinum such registration statement have been disposed reasonable numbers of copies of the prospectus, including a preliminary prospectus, in accordance conformity with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions requirements of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statementAct, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller Platinum may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such sellerit;
(ed) during any period in which a prospectus is required to be delivered register or qualify the Registrable Securities covered by the registration statement under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky Blue Sky laws of such jurisdictions states as the lead underwriter or the Applicable Approving Party Platinum shall reasonably requests request, and do any and all other acts and things which that may be reasonably necessary or advisable desirable to enable such seller Platinum to consummate the public sale or other disposition in such jurisdictions states of the Registrable Securities owned by such seller (provided Platinum; provided, however, that the Parent Company shall not be required to in connection with this paragraph (id) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f), (ii) as a foreign corporation or execute a general consent to general service of process in any jurisdiction;
(e) in connection with each registration covering an underwritten public offering, enter (and each participating holder agrees to enter) into a written agreement with the managing underwriter in such jurisdiction or form and containing such provisions (iiiincluding, if the underwriter so requests, customary contribution provisions on the part of the Company) subject itself as are customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature. Platinum shall also enter into and perform all its obligations under such an agreement;
(f) at the reasonable request of Platinum pursuant to taxation Section 1, on the date on which such Registrable Securities are sold to the underwriter, provide (i) a legal opinion of the Company’s counsel addressed to such underwriters and (ii) a letter from the Company’s independent certified public accountants, each in any such jurisdiction)customary form and substance;
(g) promptly notify in writing each seller of whenever the Company is registering any securities under the Securities Act and Platinum is selling securities under such Registrable Securities registration, (i) after it receives notice thereof, keep Platinum advised of the date initiation, progress and time when completion of such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by allow Platinum and Platinum’s counsel to comment on the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kh) make available for inspection by any seller of Registrable SecuritiesPlatinum, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by Platinum or any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives employees and independent accountants to supply all information reasonably requested by Platinum or any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mi) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earning statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(oj) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale in any jurisdiction, the Parent shall Company will use its commercially reasonable efforts promptly to obtain the withdrawal of such order;; and
(pk) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such any registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement relating thereto, the prospectus included therein (including the preliminary prospectus) and cause all such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at listed on each securities exchange on which similar securities issued by the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable SecuritiesCompany are then listed, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSIso listed, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivelisted on the New York Stock Exchange or the Nasdaq National Market.
Appears in 2 contracts
Sources: Investor Rights Agreement (Ryerson Holding Corp), Investor Rights Agreement (Ryerson Holding Corp)
Registration Procedures. In connection With respect to any Piggyback Registration or Demand Registration (generically, a “Registration”), the Company will, subject to Sections 3(a)(ii) and 3(b)(iii), as expeditiously as practicable:
(i) prepare and file with the Commission, within 90 days after mailing the applicable Notice, a registration statement or registration statements, on Form S-3, if available, (the “Registration to be effected pursuant Statement”) relating to the Resale Shelf applicable Registration Statementon any appropriate form under the Act, and whenever the holders of Registrable Securities have requested that any Registrable Securities which form shall be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and available for the sale of such the Registrable Securities in accordance with the intended method or methods of disposition distribution thereof; provided that the Company will include in any Registration Statement on a form other than Form S-1 all information that the holders of the Registrable Securities so to be registered shall reasonably request, (provided that such information is either required by Form S-1 or relevant to the offering) and shall include all financial statements required by the Commission to be filed therewith, cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. (“NASD”), and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and use all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement Registration Statement to become effective; provided further, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus related thereto (a “Prospectus”) or any amendments or supplements thereto, the Parent shall Company will furnish to counsel selected the holders of the Registrable Securities covered by such Registration Statement and the Applicable Approving Party underwriters, if any, copies of all such documents proposed to be filed, which documents shall will be subject to the reasonable review and comment of such holders and underwriters and their respective counsel), and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(bii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep each Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause each Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act; and comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(iii) notify each holder the selling holders of Registrable Securities of and the managing underwriters, if any, promptly, and (if requested by any such person or entity) confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of any registration statement the Registration Statement or the initiation of any proceedings for that purpose, (BD) if at any time the representations and warranties of the Company contemplated by subsection (xiv) below cease to be true and correct, (E) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, purpose and (CF) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes any statement made in the prospectus included in such registration statement contains an Registration Statement, the Prospectus or any document incorporated therein by reference untrue statement of a material fact or omits any fact necessary to make which requires the statements therein not misleading, and, at the request making of any such sellerchanges in the Registration Statement, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement Prospectus or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary document incorporated therein by reference in order to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 2 contracts
Sources: Investor Rights Agreement (H&E Equipment Services, Inc.), Investor Rights Agreement (H&E Equipment Services, Inc.)
Registration Procedures. (a) In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders event that a Holder requests that its or any of Registrable Securities have requested that any its Stockholder Group’s Registrable Securities be registered pursuant to this AgreementArticle 2, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company will:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, Applicable Regulator a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission as soon as practicable thereafter; and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party Selling Shareholders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, which including documents incorporated by reference in the Prospectus and, if requested by the Selling Shareholders, the Selling Shareholders (and the underwriter(s), if any) shall be subject have a reasonable opportunity to the review and comment of such counsel)thereon;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission Applicable Regulator such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary required to keep such registration statement Registration Statement effective for a period ending when all of not less than 120 days, or such shorter period as is necessary to complete the distribution of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Applicable Securities Act Law with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof Selling Shareholders set forth in such registration statement;
(diii) furnish to each seller of Registrable Securities thereunder the Selling Shareholders such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectus), each Free-Writing Prospectus ) and such other documents as such seller any underwriter(s) or Selling Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerSecurities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fiv) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter any underwriter(s) or the Applicable Approving Party Selling Shareholder reasonably requests and do any and all other acts and things which that may be reasonably necessary or advisable to enable such seller any Selling Shareholders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (Securities; provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gv) promptly notify in writing each seller the case of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedan underwritten offering, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(jA) enter into and perform such customary agreements (including underwriting agreements in customary form) as are customary in an underwritten offering and all of the representations and warranties by, and the other agreements on the part of, the Company in the underwriting agreement and other agreements to and for the benefit of such underwriters, shall also be made for the benefit of the Selling Shareholders for the limited purpose of its participation in such offering, (B) take all such other actions as the Applicable Approving Party or the underwriters, if any, underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination using best efforts to cause senior management and other Company personnel to cooperate with the Selling Shareholders and the underwriter(s) in connection with performing due diligence) and (C) use its reasonable best efforts to cause its counsel to issue opinions of shares counsel in form, substance and preparing for scope as are customary in primary underwritten offerings, addressed and participating in such number of “road shows”, investor presentations and marketing events as delivered to the underwriters managing such offering may reasonably requestunderwriter(s);
(kvi) use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which the equity securities of the Company are then listed, if any;
(vii) provide a transfer agent and registrar for all Registrable Securities not later than the effective date of such Registration Statement;
(viii) if requested, use its reasonable best efforts to cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of the Registrable Securities pursuant thereto), letters from the Company’s independent registered public accountants addressed to each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act (and the applicable rules and regulations adopted by the SEC thereunder) or other Applicable Securities Laws, rule or regulation, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings; and
(ix) promptly notify the Selling Shareholders and the underwriter or underwriters, of the following events, if any:
(A) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(B) of any written request by the Applicable Regulator for amendments or supplements to the Registration Statement or Prospectus;
(C) of the notification to the Company by the Applicable Regulator of its initiation of any proceeding with respect to the issuance by the Applicable Regulator of any stop order suspending the effectiveness of the Registration Statement;
(D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the Applicable Securities Laws of any jurisdiction; and
(E) of the happening of any event that requires the making of any changes in any Registration Statement or the Prospectus included therein in order that the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make available for inspection by the statements therein not misleading (at the request of any seller Selling Shareholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading;).
(mb) otherwise use its commercially reasonable efforts Each Holder agrees that, upon receipt of any notice from the Company pursuant to comply with all applicable rules and regulations Section 2.5(a)(ix)(B) through (E), such Holder will discontinue disposition of the Commission;
(n) permit any holder of Registrable Securities who, until such Holder’s receipt of copies of a supplemental or amended Prospectus or until advised in its good faith judgment writing (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of “Advice”) by the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder Company and its outside legal counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing that the use of the applicable Prospectus may be resumed. In the event the Company shall give any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionnotice, the Parent period during which the applicable Registration Statement is required to be maintained effective shall use its commercially reasonable efforts promptly to obtain be extended by the withdrawal number of days during the period from and including the date of the giving of such order;
(p) use its commercially reasonable efforts notice to cause such and including the date when each seller of Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable Registration Statement either receives the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters copies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time supplemented or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration amended Prospectus or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivereceives Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avianca Holdings S.A.), Registration Rights Agreement
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever (a) Whenever the holders of Investor Registrable Securities have requested that any Investor Registrable Securities be registered pursuant to this AgreementSection 4.1, the Parent Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Investor Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously promptly as reasonably possible:practicable (unless waived by the holders of a majority of Investor Registrable Securities participating in such):
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementprospectus or any issuer free writing prospectus, or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and to the selling holders, copies of all documents prepared to be filed, and to consider in good faith and discuss with such underwriters, selling holders and counsel, any comments thereon by such underwriters, selling holders and counsel and (y) not file any Registration Statement, prospectus or any amendments and or supplements thereto and related prospectuses as may be necessary to which the holders of fifty percent (50%) of the Investor Registrable Securities or the underwriters, if any, shall reasonably object (other any amendments or supplements that, in the good faith judgment of the Company, are required to correct any misstatement or omission of a material fact, or make any statement in any such Registration Statement or prospectus not misleading, or are otherwise required to comply with applicable securities lawslaw, rules or regulations);
(ii) file with the SEC, a Registration Statement with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effective, or effective and to remain effective until the earlier of eighteen (218) months (in the case an of a shelf Demand Registration Statement) or sixty (60) days (in the case of any other Demand Registration Statement) from the effective Resale Shelf time of such Registration Statement is on or such earlier time as the Registrable Securities covered by such Registration Statement have been sold in accordance with the intended method of distribution therefore; and
(iii) prepare and file with the Commission SEC such supplements and effective, an applicable prospectus or prospectus supplement amendments to such Registration Statement as may be required to keep such Registration Statement effective for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement (time provided that at least five (5in Section 4.4(a)(ii) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);above.
(b) notify With respect to each holder Registration Statement that includes Registrable Securities (unless waived by the holders of a majority of Registrable Securities participating in such), the Company shall:
(i) notify the selling holders and the managing underwriters, if any, and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company (a) when the Registration Statement or any amendment thereto has been filed or becomes effective or the prospectus or any amendment or supplement to the prospectus has been filed, (b) of any written comments or requests by the SEC or any other federal, state or regulatory authority for amendments or supplements to the Registration Statement (Aor the related prospectus), (c) of the issuance by the Commission SEC of any stop order or cease trade order suspending the effectiveness of the Registration Statement or any registration statement order preventing or suspending the use of any preliminary prospectus or prospectus, or the initiation or threatening of any proceedings for that purposesuch purposes, (Bc) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (Cd) if, at any time, the effectiveness representations and warranties of each registration statement filed hereunderthe Company in any applicable underwriting agreement cease to be true and correct in all material respects;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dii) furnish to each seller selling holder and each managing underwriter, without charge, one (1) copy of Registrable Securities thereunder such number of copies of such registration statement, each the Registration Statement and any post-effective amendment and or supplement thereto, including without limitation financial statements and schedules, all documents incorporated therein by reference and all exhibits (including without limitation those incorporated by reference);
(iii) deliver to each selling holder and each underwriter, if any, without charge, as many copies of the applicable prospectus included in such registration statement (including each preliminary prospectus)) and any amendment or supplement thereto, each Free-Writing Prospectus and such other documents as such seller selling holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerselling holder or underwriter, it being understood that the Company consents (subject to the provisions of Section 4.4(b)(v) below) to the use of such prospectus or any amendment or supplement thereto by such selling holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus or any amendment or supplement thereto;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fiv) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead managing underwriter or the Applicable Approving Party of any Underwritten Registration reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided requests; provided, that the Parent 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 Section 4(f)subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofthe selling holders and the managing underwriters, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedif any, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time during the period of effectiveness set forth in Section 4.4(a) above, when a prospectus relating thereto is required to be delivered under the Securities Act, Company becomes aware of the happening of any event as a result of which the prospectus included in such registration statement Registration Statement (as then in effect) contains an any untrue statement of a material fact or omits any to state a material fact necessary to make the statements therein when such prospectus was delivered not misleadingmisleading in light of the circumstances then existing or, andif for any other reason it shall be necessary during such time period to amend or supplement the prospectus in order to comply with the Securities Act, at the request of any such selleras promptly as practicable thereafter, the Parent promptly shall prepare, prepare and file with the Commission and furnish to each such seller a reasonable number of copies of SEC, a supplement or amendment to such prospectus so prospectus, which will correct such statement or omission or effect such compliance. Each holder agrees that, as thereafter delivered upon receipt of any notice from the Company of the happening of any event of the kind described in this Section 4.4(b)(v) such holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by this Section 4.4(b)(v) 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 incorporated by reference in the prospectus and, if so directed by the Company, such holder will deliver to the purchasers 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 current at the time of receipt of such notice;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order or notice preventing or suspending the use of any preliminary or final prospectus or any issuer free writing prospectus;
(vii) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters reasonably determines should be included therein relating to the plan of distribution with respect to such Registrable Securities, ; and make all required filings of such prospectus shall not contain an untrue statement supplement or post-effective amendment as soon as reasonably practicable after being notified of a material fact the matters to be incorporated in such prospectus supplement or omit to state any fact necessary to make the statements therein not misleadingpost-effective amendment;
(hviii) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Parent Company are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAor quoted;
(iix) provide a transfer agent and registrar and, if applicable, a CUSIP number for all such Registrable Securities not later than the effective date of such registration statementthe first Registration Statement relating to Registrable Securities or securities of any class of the Company;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(qx) cooperate with the selling holders of Registrable Securities covered by the registration statement and the managing underwriter or agentunderwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under the registration statement and not bearing any restrictive legends; and enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders underwriters may request;; and
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(sxi) if such registration includes the Registration Statement is an underwritten public offeringUnderwritten Registration, use its commercially reasonable efforts to obtain a cold comfort letter from enter into an underwriting agreement with the Parent’s independent public accountants and addressed to the underwriters, underwriters in customary form and covering containing such matters representations, warranties and other provisions as are customarily made by issuers in connection with similar Underwritten Registrations.
(c) It shall be a condition precedent to the obligations of the type customarily covered by cold comfort letters Company to take any action pursuant to Section 4.1 or 4.2 that each seller of Registrable Securities as the underwriters in such to which any registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect is being effected shall furnish to the registration statementCompany such information regarding such seller, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at held by such seller, and the time an Automatic Shelf Registration Statement is filed, pay intended method of disposition of such fee at securities as shall be required to timely effect the registration of such time or times as the seller’s Registrable Securities are to be sold; andSecurities.
(wd) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsIf, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when at a shelf registration under Rule 415 under the Parent Securities Act and under which Investor Registrable Securities have been registered is required in effect, the Company shall furnish to re-evaluate its WKSI status the Parent determines Investor a certificate of an authorized officer stating that it is the continued use of such shelf Registration Statement would require the Company to make an Adverse Disclosure, then the Company may suspend the use by the Investor of such Registration Statement for period of up to ninety (90) days (a “Shelf Suspension”); provided however, that the Company shall not be permitted to exercise a WKSIShelf Suspension more than twice in any twelve (12)-month period for each Registration Statement. In the case of a Shelf Suspension, the Investor agrees to suspend use its commercially reasonable efforts to refile of the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.applicable prospectus. The Company shall promptly notify
Appears in 2 contracts
Sources: Stockholder Agreement (NXP B.V.), Stockholder Agreement (Trident Microsystems Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to (a) Whenever required under this Agreement, the Parent Company shall use its commercially reasonable best efforts to effect the registration and the sale of such any Registrable Securities in accordance with the intended method of disposition thereofCompany Shares, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(ci) prepare and file with the Commission SEC or equivalent foreign regulatory body, a Registration Statement with respect to such Registrable Company Shares and use its best efforts to cause such Registration Statement to become effective as soon as practicable thereafter;
(ii) prepare and file with the SEC or equivalent foreign regulatory body such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for an aggregate of six (6) months (or such longer period provided in Section 2, in the case of a Shelf Registration Statement), or such shorter period ending when all as is necessary to complete the distribution of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Shelf Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during such period in accordance with the intended methods plan of disposition by the sellers thereof distribution set forth in such registration statementRegistration Statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fiii) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Company Shares under such other securities or blue sky laws of such U.S. jurisdictions as the lead underwriter or the Applicable Approving Party Shareholders reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition request in such jurisdictions of the Registrable Securities owned by such seller (provided writing; provided, that the Parent shall Company will not be required to (i1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(fsubparagraph (iii), (ii2) subject itself to taxation in any such jurisdiction (3) consent to general service of process in any such jurisdiction or (iii4) subject itself make any changes to taxation in any report filed or furnished pursuant to the Exchange Act that are incorporated by reference into such jurisdiction)Registration Statement;
(giv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofthe Shareholders, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act, of the happening occurrence of any event as a result of which the prospectus included in such registration statement any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller misleading (a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading“Suspension Notice”);
(hv) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued make available for inspection by the Parent are then listed andShareholders and any attorney, accountant or other agent retained by any such Shareholder or underwriter, if not so listedany, to be listed on a securities exchange andall financial and other records, without limiting the generality pertinent corporate documents and properties of the foregoingCompany, and cause the Company’s officers, directors, employees and independent accountants to arrange for at least two market makers supply all information reasonably requested by the Shareholders to register conduct a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with such Registration Statement; provided, 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; and provided further that each Person receiving such information shall, as a condition to receiving such with respect information, agree in writing to keep such Registrable Securities with FINRAinformation confidential and to take such actions as are reasonably necessary to protect the confidentiality of such information;
(ivi) provide a transfer agent and registrar for all such Registrable Securities not later than in the effective date event of such registration statement;
(j) any underwritten public offering, enter into and perform such customary agreements (including its obligations under an underwriting agreements agreement, in usual and customary form) , with the managing underwriters of such offering and take all such other actions (including, without limitation, causing representatives of the Company to participate in any “road show” or “road shows”) as the Applicable Approving Party holders of a majority of the Registrable Company Shares being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Company Shares (including, without limitation, including effecting a stock split share subdivision or a combination or consolidation of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably requestshares);
(kvii) make available for inspection by any seller in the event of Registrable Securitiesan underwritten offering, any underwriter participating in any disposition pursuant to furnish to such registration statement and any attorney, accountant or other agent retained underwriters in customary form:
(1) an opinion of counsel to the Company and
(2) a “comfort” letter signed by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statementpublic accountants;
(lviii) take all reasonable actions cooperate and assist in any filings required to ensure be made with FINRA in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter” that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act required to the extent required thereby, is be retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light rules and regulations of the circumstances under which they were made, not misleadingFINRA);
(mix) use its reasonable best efforts to cause all Registrable Company Shares to be listed on any securities exchange on which similar securities issued by the Company are then listed; provided that the applicable listing requirements are satisfied;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC or equivalent foreign regulatory body as related to the Company’s obligations hereunder, and, if applicable, use its reasonable best efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve (12) months which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC;
(nxi) permit promptly notify the Shareholders:
(1) when the Registration Statement, any holder of Registrable Securities whopre-effective amendment, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter Prospectus or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished post-effective amendment to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
Registration Statement has been filed (o) in the event of the issuance of but not including any stop order suspending the effectiveness of a registration statement, report filed or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed furnished pursuant to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(tExchange Act) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC or equivalent foreign regulatory body for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC or equivalent foreign regulatory body relating to the Registration Statement;
(3) of the notification to the Company by the SEC or equivalent foreign regulatory body of its initiation of any proceeding with respect to the issuance or threatened issuance by the SEC or equivalent foreign regulatory body of any stop order, or similar foreign order, suspending the effectiveness of the Registration Statement and take all action required to prevent the entry of such stop order or to remove it if entered; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Company Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(xii) take all other steps reasonably necessary to effect the registration statementof the Registrable Company Shares contemplated hereby.
(b) The Company shall make available to the Shareholders (i) prior to filing a Registration Statement, at least one (1) copy of such Registration Statement as is proposed to be filed (including each Prospectus), (ii) as soon as practicable after the same is prepared and publicly distributed, filed with the SEC or equivalent foreign regulatory body, or received by the Company, one copy of each Registration Statement and any amendment thereto, each Prospectus and each amendment and or supplement thereto, each letter written by or on behalf of the prospectus included therein 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 each item of correspondence from the preliminary prospectusSEC 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, and (iii) such number of copies of each Prospectus and all amendments and supplements thereto and such other documents relating thereto as the Shareholders may reasonably request in customary form and covering such matters order to facilitate the disposition of the type customarily covered Registrable Company Shares, provided, however, that the Company shall have no such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by legal opinions the Company.
(c) Each Shareholder shall furnish to the Company any information regarding the Shareholder and the distribution of such nature, which opinion shall securities as the Company reasonably determines is required to be addressed to the underwriters;included in any Registration Statement.
(ud) if Each Shareholder agrees that, upon receipt of a Suspension Notice from the Parent files an Automatic Shelf Company, the Shareholder will forthwith discontinue disposition of Registrable Company Shares pursuant to such Registration Statement covering until the Shareholder 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.
(e) The Shareholders shall not use any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer free writing prospectus (as defined in Rule 405)405 under the Securities Act) during in connection with any registration statement covering Registrable Company Shares, without the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end prior written consent of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Travelport Worldwide LTD), Restructuring Support Agreement (Travelport LTD)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company shall be required to use its reasonable best efforts to effect or cause the registration of Registrable Securities have requested that any Registrable Securities be registered pursuant to under the Act as provided in this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities 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 in accordance with the methods of distribution thereof intended by the Holders participating in such registration, and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission amendments and post-effective amendments to such Registration Statement and such amendments and supplements to such registration statement and the prospectus Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Act for a Shelf Registration (if available) if requested by the Holders of a majority of the Registrable Securities to be included in such registration, or otherwise necessary to keep such registration statement Registration Statement effective for a period ending when all of to permit the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution intended by the sellers thereof set forth Holders participating in such registration statement (but not in any event before for at least 90 days and cause the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period Prospectus as in the opinion of counsel for the underwriters a prospectus is required by law so supplemented to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) filed pursuant to Rule 424, and to otherwise comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement in the manner reasonably requested by the Holders of a majority of the Registrable Securities to be included in such registration statement during until the earlier of (x) such period time as all of the Registrable Securities have been disposed of in accordance with the intended methods of disposition disposition, and (y) the expiration of nine months after the effective date of such Registration Statement (it being understood that the Company at its option may determine to maintain such effectiveness for a longer period, whether pursuant to a Shelf Registration or otherwise); provided, however, that a reasonable time before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the sellers thereof set forth in such registration statementExchange Act), the Company shall furnish to the Participating Holders, the managing underwriter, if any, and their respective counsel for review and comment, copies of all documents proposed to be filed;
(dc) furnish to the Participating Holders and to any underwriter in connection with an Underwritten Offering such number of conformed copies of such Registration Statement and of each seller of Registrable Securities thereunder amendment and post-effective amendment thereto (in each case including all exhibits) and such number of copies of such registration statementany preliminary Prospectus, each amendment and Prospectus or Prospectus supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller the Participating Holders or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Participating Holders or underwriters (the Company hereby consenting to the use (subject to the limitations set forth in Section 4(h) hereof) of the Prospectus or any amendment or supplement thereto in connection with such sellerdisposition);
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to the sale of such Registrable Securities covered by such Registration Statement under such other securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Participating Holders shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided request, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this Section 4(d), it would not otherwise be required obligated to qualify but for this Section 4(f)be so qualified, (ii) subject itself to taxation in any such jurisdiction, or (iii) to consent to general service of process in any such jurisdiction or jurisdiction;
(iiie) subject itself enter into an underwriting agreement in customary form as reasonably requested by Holders;
(f) cause the Company’s counsel and independent accountants to taxation deliver to the underwriters opinions and comfort letters in customary form as required by any such jurisdiction)underwriting agreement entered into by the Holders and the Company;
(g) promptly notify participate in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date “road shows” and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request similar presentations as reasonably requested by the Commission for underwriters;
(h) notify the amendment or supplementing of such registration statement or prospectus or for additional informationParticipating Holders, and (iii) at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in Section 4(b) hereof, of the happening of any event as a result of which Company’s becoming aware that the prospectus Prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such sellerParticipating Holder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller Participating Holder a reasonable number of copies of a an amendment or supplement or amendment to such prospectus Registration Statement or related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleadingthen existing;
(mi) otherwise use its commercially reasonable efforts notify the Participating Holders as soon as reasonably possible:
(A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to comply with all applicable rules and regulations of the CommissionRegistration Statement or any post-effective amendment, when the same has become effective;
(nB) permit of any holder request by the Commission or any other Federal or state governmental authority for additional information;
(C) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or the Prospectus;
(D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation (or any overt threats) of any proceedings for such purposes; and
(E) of the receipt by the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation (or overt threats) of any proceeding for that purpose.
(j) use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on a national securities exchange or automated quotation system on which the class of Registrable Securities whobeing registered is then listed or quoted, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter if such Registrable Securities are not already so listed or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be includedquoted;
(ok) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, the Registration Statement or of any order suspending or preventing the use of any related prospectus Prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement the Registration Statement for sale in any jurisdiction, the Parent shall use its all commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivewithdrawal.
Appears in 2 contracts
Sources: Debenture and Stock Purchase Agreement (Bakers Footwear Group Inc), Registration Rights Agreement (Bakers Footwear Group Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 2 and Section 3, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall cooperate in all reasonable respects in the sale of such Registrable Securities and shall, as expeditiously quickly as reasonably possiblepracticable:
(a) except prepare and file, in connection each case as promptly as practicable, with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with the Securities Act and intended method or methods of distribution thereof, make all applicable rules and regulations promulgated thereunder required filings with FINRA, and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effectiveto remain effective as provided herein; provided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each 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 pursuant to a Demand Notice (other than a Shelf Registration Statement), the Parent Company shall furnish or otherwise make available to the Holders of the Registrable Securities covered by such Registration Statement, their counsel selected by and the Applicable Approving Party managing underwriter(s), if any, copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel, and 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 will include comments to any Registration Statement and any amendments or supplements thereto from Holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, as reasonably requested on a timely basis. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein and including Free Writing Prospectuses) with respect to a Demand Registration to which the demanding Holder or the Holders of a majority of the Registrable Securities covered by such Registration Statement (or their counsel) or the 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;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments amendments, including post-effective amendments, and supplements 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 a during the period ending when 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; cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of 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 distribution disposition by the seller or sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Registration Statement; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriter(s), if any, promptly after the Company receives notice thereof (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 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(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 such 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 or happening of any 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 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 the 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) furnish use its reasonable best efforts to each seller 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 thereunder such number of copies of such registration statement, each amendment and supplement thereto, for sale in any jurisdiction at the prospectus included in such registration statement earliest date reasonably practical;
(including each preliminary prospectuse) if requested by the managing underwriter(s), each Freeif any, a Holder making a Demand Notice with respect to such offering or the Holders of a majority of the then-Writing issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a Prospectus and supplement or post-effective amendment such other documents information as the managing underwriter(s), if any, or such seller Holder or Holders, as the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by in accordance with the intended method or methods of distribution of such seller;
(e) during any period securities set forth in which a prospectus is the Registration Statement 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 the Company shall not be required to be delivered take any actions under this Section 4(e) that are not, in the Securities Actopinion of counsel for the Company, promptly file all documents required to be filed in compliance with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actapplicable law;
(f) deliver to each seller 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 (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 the Company, 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 seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register, register or qualify or secure an cooperate with the sellers of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration with respect to or qualification) of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller sellers of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions jurisdiction in accordance with the intended method or methods of the Registrable Securities owned by such seller (provided disposition thereof; provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f4(g), (ii) consent subject itself to taxation in any jurisdiction wherein it is not 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 (other than service of process in connection with such registration or (iii) subject itself to taxation qualification or any sale of Registrable Securities in any such jurisdictionconnection therewith);
(gh) promptly notify cooperate with the sellers of Registrable Securities and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends unless required under applicable law) representing Registrable Securities to be sold, and enable such Registrable Securities to be in writing each such denominations and registered in such names as the managing underwriter(s), if any, or sellers 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 5 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 as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such seller’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(ij) after it receives notice thereofupon the occurrence of any event contemplated by Section 4(c)(vi) above, of the date and time when such registration statement and each promptly prepare a supplement or post-effective amendment thereto has become effective to the Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Actincorporated therein by reference, of the happening of or file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus 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 contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(k) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for each type of the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of such 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 which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by a seller or the underwriter or managing underwriter of an Underwritten Offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement;
(m) otherwise use its commercially reasonable best efforts to comply with cause all applicable rules and regulations shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the Commissionparticular class of Registrable Securities are at that time listed on such exchange, prior to the effectiveness of such Registration Statement;
(n) permit any holder enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other customary actions reasonably requested by a Holder submitting a Demand Notice with respect to such offering or the Holders of a majority of the Registrable Securities who, being sold in its good faith judgment connection therewith (based on including those reasonably requested by the advice of counselmanaging underwriter(s), could reasonably be expected if any) to be deemed to be an underwriter expedite or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by , and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration statement is an underwritten registration, (i) make such representations and warranties to the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition Holders of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement)any, with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters business of the type customarily covered by legal opinions of such natureCompany and its Subsidiaries, which opinion shall be addressed to and the underwriters;
(u) Registration Statement, Prospectus and documents, if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securitiesany, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time incorporated or times as the Registrable Securities are deemed to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsincorporated by reference therein, at the end of the third yearin each case, refile a new Automatic Shelf Registration Statement covering the Registrable Securitiesin form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if at any time true, confirm the same if and when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSIreasonably requested, (ii) use its commercially reasonable best efforts to refile furnish to the registration statement on Form S-3 sellers of such Registrable Securities opinions of outside counsel (and/or internal counsel if acceptable to the managing underwriter(s)) to the Company and keep such registration statement effective updates thereof (including by filing a new Resale Shelf Registration or Shelf Registrationwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if necessary) during any, and counsels to the period throughout which such registration statement is required sellers of the Registrable Securities), addressed to be kept effective.each seller of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in Underwritten
Appears in 2 contracts
Sources: Contribution and Exchange Agreement (Special Diversified Opportunities Inc.), Registration Rights Agreement (Standard Diversified Opportunities Inc.)
Registration Procedures. In connection with the Registration to be case of each registration, qualification or compliance effected pursuant to by the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Company pursuant to this AgreementSection 3, the Parent shall Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, and remain effective for one hundred twenty (120) days or (2) until the distribution described in the case an effective Resale Shelf Registration Statement has been completed, whichever is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)shorter;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller the Holders participating in such registration and to the underwriters of Registrable Securities thereunder the securities being registered such reasonable number of copies of such the registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus final prospectus and such other documents as such seller underwriters may reasonably request in order to facilitate the disposition public offering of the Registrable Securities owned by such sellersecurities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(hd) cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed andor, if not so listedin the case of the Company’s IPO, to be listed on a national or internationally recognized securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAor trading system;
(ie) use its reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; 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;
(f) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form reasonably necessary to effect the offer and sale of the securities, with the managing underwriter of such offering, provided that each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; and
(g) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and a CUSIP number for all such Registrable Securities Securities, in each case not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 2 contracts
Sources: Members Agreement (Credo Technology Group Holding LTD), Members Agreement (Credo Technology Group Holding LTD)
Registration Procedures. In connection with the Registration to be case of each registration, qualification or compliance effected pursuant to by the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Company pursuant to this AgreementSection 3, the Parent shall use Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its commercially reasonable efforts to effect expense the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany will:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act Prepare and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, and remain effective for at least ninety (90) days or (2) until the distribution described in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)has been completed;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish Furnish to each seller the Holders participating in such registration and to the underwriters of Registrable Securities thereunder the securities being registered such reasonable number of copies of such the registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus final prospectus and such other documents as such seller underwriters may reasonably request in order to facilitate the disposition public offering of such securities;
(d) Furnish, at the request of any Holder requesting registration of Registrable Securities that are delivered to the underwriters for sale in connection with a registration pursuant to this Section 3.5, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities owned and (ii) a letter dated such date, from the independent accountants of the Company, in form and substance as is customarily given by such sellerindependent accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use Use its commercially reasonable best efforts to register, register and qualify or secure an exemption from the securities covered by such registration with respect to such Registrable Securities statement under such other securities or blue sky laws of such jurisdictions jurisdiction as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions of the Registrable Securities owned by such seller (Holders, provided that the Parent Company shall not be required in connection therein or as a condition thereto to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or jurisdictions;
(iiif) subject itself to taxation In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in any usual and customary form, with the managing underwriter of such jurisdiction)offering;
(g) promptly notify in writing Notify each seller Holder of such Registrable Securities (i) after it receives notice thereof, of the date and time when covered by such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, Act of the happening of any event as a result of which the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request light of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securitiescircumstances then existing, such prospectus shall not contain an untrue statement of a material fact or omit obligation to state any fact necessary to make the statements therein not misleadingcontinue for ninety (90) days;
(h) cause Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed listed; and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities Securities, in each case not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveregistration.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Endocyte Inc), Investors’ Rights Agreement (Endocyte Inc)
Registration Procedures. In connection with (a) Whenever the Registration Company is required to be effected use all reasonable efforts to effect the registration of any Registrable Securities under the Securities Act pursuant to the Resale Shelf Registration Statement, terms and whenever the holders conditions of Section 2(a) or 3 (such Registrable Securities have requested that any Registrable Securities be registered pursuant being hereinafter referred to this Agreementas "Subject Shares"), the Parent shall Company will use its commercially all reasonable efforts to effect the registration and the sale of such Registrable Securities the Subject Shares in accordance with the intended method of disposition thereof. Without limiting the generality of the foregoing, and pursuant thereto the Parent shall Company will as expeditiously soon as reasonably possiblepracticable:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, SEC a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities the Subject Shares in form and substance satisfactory to the Holders of the Subject Shares, and use commercially all reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)as soon as possible;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the applicable period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all Subject Shares and other 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;
(diii) furnish to the Holders covered by such registration statement, without charge, such number of conformed copies of such registration statement and of each seller of Registrable Securities thereunder such amendment and supplement thereto (in each case including all exhibits), such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus such documents incorporated by reference in such registration statement or prospectus, and such other documents documents, as such seller Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerrequest;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fiv) use its commercially all reasonable efforts to register, register or qualify or secure an exemption from the Subject Shares covered by such registration with respect to such Registrable Securities statement under such other the securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party managing underwriter(s) shall reasonably requests recommend, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned Subject Shares covered by such seller (provided registration statement, except that the Parent Company shall not for any such purpose be required to (iA) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would is not otherwise be required to qualify but for this Section 4(f)so qualified, (iiB) subject itself to taxation in any jurisdiction wherein it is not so subject, or (C) consent to general service of process in any such jurisdiction or (iii) otherwise take any action that would subject itself it to taxation the general jurisdiction of the courts of any jurisdiction in any such jurisdiction)which it is not so subject;
(gv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, otherwise use its best efforts to comply with all applicable rules and regulations of the date SEC;
(vi) furnish, at the Company's expense, unlegended certificates representing ownership of the securities being sold in such denominations as shall be requested and time when such registration statement and instruct the transfer agent to release any stop transfer orders with respect to the Subject Shares being sold;
(vii) notify each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Holder at any time when a prospectus relating thereto to the Subject Shares is required to be delivered under the Securities Act, Act of the happening of any event as a result of which the prospectus included in such registration statement Registration Statement contains an any untrue statement of a material fact or omits any 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, andand the Company will, at the request of any such selleras promptly as practicable thereafter, the Parent promptly shall prepare, prepare and file with the Commission SEC and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, Subject 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading;
(mviii) otherwise use its commercially reasonable efforts enter into customary agreements (including an underwriting agreement in customary form in the case of an underwritten offering) and make such representations and warranties to comply with all applicable rules the sellers and regulations underwriter(s) as in form and substance and scope are customarily made by issuers to underwriters in underwritten offerings and take such other actions as the Holders or the managing underwriter(s) or agent, if any, reasonably require in order to expedite or facilitate the disposition of the Commissionsuch Subject Shares;
(nix) permit make available for inspection by the Holders, any holder underwriter or agent participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other similar professional advisor retained by any such holders or underwriter (collectively the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of Registrable Securities whothe Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. The Holders agree that Records and other information which the Company determines, in its good faith judgment (based on the advice of counsel)faith, could reasonably be expected to be deemed confidential and of which determination the Inspectors are so notified shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to be an underwriter avoid or correct a controlling Person misstatement or omission in the Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena, court order or regulatory or agency request or (iii) the information in such Records has been generally disseminated to the public. Each Holder agrees that it will, upon learning that disclosure of such Record is sought in a court of competent jurisdiction or by a governmental agency, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be includedRecords deemed confidential;
(ox) obtain for delivery to the Company, the underwriter(s) or their agent, with copies to the Holders, a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters of the event type customarily covered by "cold comfort" letters as the Holders or the managing underwriter(s) reasonably request;
(xi) obtain for delivery to the Holders and the underwriter(s) or their agent an opinion or opinions from counsel for the Company in customary form and reasonably satisfactory to the Holder, underwriters or agents and their counsel;
(xii) make available to its security holders earnings statements, which need not be audited, satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12-month period beginning with the first month of the Company's first quarter commencing after the effective date of the Registration Statement, which earnings statements shall cover said 12-month period;
(xiii) make every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of a the registration statement, statement or of any order suspending or preventing the use of any related prospectus or suspending the qualification effectiveness of any Common Stock included in such registration statement for sale in any jurisdiction, at the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such orderearliest possible moment;
(pxiv) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement the Subject Shares to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the sellers thereof or the underwriters(s), if any, to consummate the disposition of such Registrable SecuritiesSubject Shares;
(qxv) cooperate with the holders of Registrable Securities covered by the registration statement Holders and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agentunderwriter(s), if any, or such holders may requestany other interested party (including any interested broker-dealer) in making any filings or submission required to be made, and the furnishing of all appropriate information in connection therewith, with the National Association of Securities Dealers, Inc. ("NASD");
(rxvi) cooperate with each holder cause its subsidiaries to take action necessary to effect the registration of Registrable Securities covered the Subject Shares contemplated hereby, including filing any required financial information;
(xvii) effect the listing of the Subject Shares on the Nasdaq National Market or such other national securities exchange or over-the-counter market on which shares of the Common Stock shall then be listed; and
(xviii) take all other steps necessary to effect the registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the Holders and stated to be specifically for use in the related registration statement, preliminary prospectus, prospectus or other document incident thereto) all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and any applicable state securities laws and to obtain any desired acceleration of the effective date of any registration statement prepared and each underwriter filed by the Company pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or agent participating in the disposition of such Registrable Securities and their respective counsel managing underwriter(s) in connection with any filings proposed registration and distribution pursuant to this Agreement, (i) agree to sell the Subject Shares on the basis provided in any underwriting arrangements entered into in connection therewith and (ii) complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents customary in similar offerings.
(d) Upon receipt of any notice from the Company that the Company has become aware that the prospectus (including any preliminary prospectus) included in any registration statement filed pursuant to Section 2(a) or 3, as then in effect, contains any untrue statement of a material fact or omits to state any material fact required to be made with FINRA;
(s) if such registration includes an underwritten public offeringstated therein or necessary to make the statements therein not misleading, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed Holders shall forthwith discontinue disposition of Subject Shares pursuant to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (covering the same until the Holders' receipt of copies of a supplemented or amended prospectus and, if such registration includes an underwritten Public Offeringso directed by the Company, dated deliver to the date Company (at the Company's expense) all copies other than permanent file copies then in the Holder's possession, of the closing under prospectus covering the underwriting agreementSubject Shares that was in effect prior to such amendment or supplement.
(e) The Company shall pay all out-of-pocket expenses incurred in connection with the first two Demand Registration Statements filed pursuant to Section 2(a) of this Agreement, including, without limitation, all SEC and blue sky registration and filing fees (including NASD fees), with respect printing expenses, transfer agents and registrars' fees attributable to securities sold for the account of the Holders pursuant to such registration statement, each amendment fees and supplement theretodisbursements of the Company's counsel and accountants and fees and disbursements of experts used by the Company in connection with such registration statement, except that the Holders shall pay on a pro rata basis all underwriting discounts, commissions and expenses attributable to the Subject Shares sold pursuant to any such registration statement. TMG shall pay any such out-of-pocket expenses incurred in connection with the third Demand Registration Statement filed pursuant to Section 2(a) of this Agreement, except that the Holders shall pay, on a pro rata basis, all underwriting discounts, commissions and expenses attributable to the Subject Shares sold pursuant to any such registration statement. The Company shall pay any such out-of-pocket expenses incurred in connection with any registration statement filed pursuant to Section 3 of this Agreement, except that the Holders shall pay, on a pro rata basis, all underwriting discounts, commissions and expenses attributable to the Subject Shares sold pursuant to any such registration statement.
(f) In connection with any sale of Subject Shares that are registered pursuant to this Agreement, the prospectus included therein (including Company and the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters Holders shall enter into an agreement providing for indemnification of the type customarily covered Holders by legal opinions the Company, and indemnification of the Company by the Holders, on terms customary for such nature, which opinion agreements at that time (it being understood that any disputes arising as to what is customary shall be addressed resolved by counsel to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405underwriter(s)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective).
Appears in 2 contracts
Sources: Registration Rights Agreement (PRT Group Inc), Registration Rights Agreement (PRT Group Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 2 hereof to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) effective in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)expeditious manner;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement continuously effective for a period ending when all of during the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period Registration Statement in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to each seller of Registrable Securities thereunder and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents ) as such seller persons reasonably may reasonably request in order to facilitate the intended disposition of the Registrable Securities owned covered by such sellerRegistration Statement;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts (i) to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such Registration Statement under such other the securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or sellers of Registrable Securities or, in the Applicable Approving Party case of an underwritten public offering, the managing underwriter, reasonably requests shall request, (ii) to prepare and do any file in those jurisdictions such amendments (including post-effective amendments) and all supplements, and take such other acts and things which actions, as may be reasonably necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such seller (provided jurisdictions, provided, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtainedsuch Registration Statement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains an Registration Statement, as then in effect, includes any untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, misleading in light of the circumstances under which they were made, not misleadingthen existing and promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;
(mg) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder promptly notify each seller of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance by the Commission of any stop order suspending the effectiveness of a registration statement, the Registration Statement or the initiation of any order suspending or preventing proceedings for that purpose and make every reasonable effort to prevent the use issuance of any related prospectus or suspending the qualification of stop order and, if any Common Stock included in such registration statement for sale in any jurisdictionstop order is issued, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such orderlifting thereof at the earliest possible time;
(ph) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(i) if the offering is an underwritten offering, at the request of any seller of Registrable Securities, use its commercially reasonable efforts to cause furnish to such seller on the date that Registrable Securities covered are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration statement to be registered with or approved by as such other governmental agencies or authorities as underwriters reasonably may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securitiesrequest;
(qj) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing securities the Registrable Securities to be sold under pursuant to the registration statement Registration Statement and to enable such securities certificates to be in such denominations and registered in such names as the managing underwriter, Investor or agent, if any, or such holders any underwriters may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(wk) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at take all other reasonable actions necessary to expedite and facilitate the end registration of the third year, refile a new Automatic Shelf Registrable Securities pursuant to the Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Shiner International, Inc.), Registration Rights Agreement (Shiner International, Inc.)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02 and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Participating Investors, if any, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Participating Investors and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which any Participating Investor or the underwriters, if any, shall reasonably object;
(bii) notify each holder of as promptly as practicable file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the 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 Participating Holder), or (z) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used in connection therewith as may Participating Investor(s) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (Section 2.01(c) or 2.02(b), whichever is applicable, provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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;
(xiv) 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;
(xv) 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 statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of Section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if the Parent does not pay the filing fee covering the Registrable Securities make available upon reasonable notice at the time an Automatic Shelf reasonable times and for reasonable periods for inspection by any Participating Investor, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee at Participating Investor(s) or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; provided, that, any such Person gaining access to information regarding the Company pursuant to this Section
(a) (xxii) shall agree to hold in strict confidence and shall not make any disclosure or times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person; and
(wxxiii) if in the case of an Automatic Shelf Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.
(b) 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 Participating 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, upon delivery of any notice by the Company of the happening of any event of the kind described in Section 2.05(a)(iv)(C), (D), or (E) or Section 2.05(a)(v), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement has been outstanding for at least three until (3i) years, at the end such Participating Holder’s receipt of the third yearcopies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(v), refile a new Automatic Shelf Registration Statement covering (ii) such Participating Holder is advised in writing by the Registrable SecuritiesCompany that the use of the Prospectus or Issuer Free Writing Prospectus, andas the case may be, if at any time when may be resumed, (iii) such Participating Holder is advised in writing by the Parent Company of the termination, expiration or cessation of such order or suspension referenced in Section 2.05(a)(iv)(C) or (E) or (iv) such Participating Holder is required to re-evaluate its WKSI status advised in writing by the Parent determines Company that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 representations and keep warranties of the Company in such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.applicable underwriting agreement are true and corr
Appears in 2 contracts
Sources: Registration Rights Agreement (CrowdStrike Holdings, Inc.), Registration Rights Agreement (CrowdStrike Holdings, Inc.)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02, and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Institutional Investors, if applicable, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Institutional Investors and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which the Institutional Investors or the underwriters, if any, shall reasonably object;
(bii) notify each holder as promptly as practicable and in accordance with the other provisions of this Agreement, file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by the Institutional Investors, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (z) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used Institutional Investors (to the extent the Institutional Investors are participating in connection therewith as may such Registration) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (provided Section 2.02(b), provided, that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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 or any other required depository;
(xiv) 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;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Institutional Investors or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Institutional Investors, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee at Institutional Investors or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; provided, that any such Person gaining access to information regarding the Company pursuant to this Section 2.05(a)(xii) shall agree to hold in strict confidence and shall not make any disclosure or times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
(xxiii) in the case of an Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(wxxiv) if an Automatic Shelf otherwise comply in all material respects with all applicable rules and regulations of the SEC in connection with any Registration Statement has been outstanding for at least three and the disposition of all Registrable Securities covered by such Registration Statement.
(3b) yearsThe 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 Participating 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, at upon delivery of any notice by the end Company of the third yearhappening of any event of the kind described in Section 2.05(a)(iv)(C), refile a new Automatic Shelf (D), or (E) or Section 2.05(a)(v), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement covering until (i) such Participating Holder’s receipt of the Registrable Securitiescopies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(v), and, if at any time when (ii) such Participating Holder is advised in writing by the Parent is required to re-evaluate its WKSI status Company that the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile of the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration Prospectus or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.Issuer Free Writing Prospec
Appears in 2 contracts
Sources: Registration Rights Agreement (Certara, Inc.), Registration Rights Agreement (Certara, Inc.)
Registration Procedures. In connection with Whenever the Registration Company is obligated to be effected pursuant to register the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Shareholder’s Registrable Securities in a reasonable amount of time after receiving the appropriate request from the Shareholders, and use commercially to include in such registration statement the Registrable Securities which the Company has been requested to register;
(b) cause all such Registrable Securities to be registered under the Securities Act in a reasonable efforts amount of time and, subject to Section 4.1, to cause such registration statement to become effective, or remain effective until the earlier of (2i) in the case an effective Resale Shelf Registration Statement is on file with one year anniversary of the Commission and effective, an applicable prospectus or prospectus supplement for issuance of the resale shares of Registrable Securities Common stock issued pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposePurchase Agreement, and (Cii) the effectiveness completion of each the distribution described in the registration statement filed hereunderrelating thereto;
(c) furnish the Shareholders, their underwriters, if any, and their respective counsel, at such times so as to permit their reasonable review, the opportunity to review the registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and to consider in good faith incorporating any comments reasonably requested by the Shareholders, their underwriters, if any, and their respective counsel, provided that the Shareholders’, the underwriters’, if any, and their respective counsels’ review of such documents shall not delay the filing of the registration statement so long as such parties have been provided a reasonable time to review the same;
(d) make available for reasonable inspection by, or give reasonable access to, any underwriter participating in any disposition of Registrable Securities all pertinent financial and other records, pertinent corporate documents and properties of the Company, and to cause its senior management to participate in such management presentations and one roadshow as such underwriters may reasonably request (provided that such managers are given reasonable advanced notice of such presentations and roadshow and that such managers shall only be obligated to participate in one roadshow of reasonably customary duration) and to cause the Company’s directors, officers and employees to supply all information reasonably requested by any such underwriter in connection with the offering thereunder;
(e) furnish, without charge, to the Shareholders and to the underwriters of the securities being registered such number of copies of the registration statement, preliminary prospectus, final prospectus and other documents incident thereto as such underwriters and the Shareholders from time to time may reasonably request;
(f) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dg) furnish to each seller of register or qualify the Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities laws or state blue sky laws of such U.S. jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions Shareholders for the distribution of the Registrable Securities owned covered by such seller (the registration statement; provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or (iii) jurisdictions or to subject itself to taxation in any such jurisdictionstates or jurisdictions wherein it would not but for the requirements of this paragraph (g) be required to do so;
(h) enter into customary agreements in form and substance reasonably satisfactory to the Company (including a customary underwriting agreement in form and substance reasonably satisfactory to the Company, if the offering is to be underwritten, in whole or in part);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of notify the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Shareholders 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 contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances then existing and, at the request of any such sellerShareholder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller Shareholder a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were madethen existing; provided that, not misleadingupon receipt of such notice from the Company, the Shareholders will forthwith discontinue disposition of their Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Shareholders receive the copies of the supplemented or amended prospectus covering such Registrable Securities (and the Shareholders shall return to the Company all copies of the unsupplemented or unamended prospectus covering such Registrable Securities);
(mj) otherwise use its commercially reasonable efforts to comply with list all applicable rules and regulations Registrable Securities covered by such registration statement on the NASDAQ or on such other securities exchange on which shares of the CommissionCommon Stock are then currently listed;
(nk) permit prevent the issuance of any holder order suspending the effectiveness of a registration statement or suspending the qualification (or exemption from qualification) of any of the Registrable Securities whoincluded therein for sale in any U.S. jurisdiction, in its good faith judgment (based on the advice of counsel)and, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Securities included in such registration statement for sale in any U.S. jurisdiction, the Parent shall Company will use its commercially reasonable efforts to promptly to obtain the withdrawal of such order;
(pl) use its commercially reasonable efforts obtain “cold comfort” letters and updates thereof reasonably satisfactory to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter underwriters from the Parent’s independent certified public accountants and of the Company, addressed to each of the underwriters, such letters to be in customary form and covering such matters of the type customarily covered by in “cold comfort comfort” letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an connection with underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be soldofferings; and
(wm) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsobtain opinions of independent counsel to the Company reasonably satisfactory to the managing underwriters, at the end addressed to each of the third year, refile a new Automatic Shelf Registration Statement underwriters covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivematters customarily covered in opinions of issuer’s counsel requested in underwritten offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Central European Distribution Corp), Registration Rights Agreement (Central European Distribution Corp)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreementeffect a Piggyback Registration or Registration Request as provided herein, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany covenants that:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus Registration Statement or any amendments or supplements thereto, the Parent shall Company will furnish to counsel selected by the Applicable Approving Party Shareholder Parties and their respective Representatives copies of all such documents proposed to be filed, which documents shall will be subject to the their review and reasonable comment, and other documents reasonably requested by any Shareholder Party, including any comment letter from the SEC, and, if requested, provide the Shareholder Parties and their respective Representatives reasonable opportunity to participate in the preparation of such counsel)documents proposed to be filed and such other opportunities to conduct a reasonable investigation within the meaning of the 1933 Act, including reasonable access to the Company’s officers, accountants and other advisors;
(b) notify each holder subject to terms and conditions of Registrable Securities of (A) this Agreement, the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) Company will prepare and file with the Commission such amendments and supplements SEC a Registration Statement with respect to such registration statement Registrable Securities on any form for which the Company then qualifies or which counsel for the Company in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate and which form will be available for the prospectus used in connection therewith as may be necessary to keep sale of such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of Registrable Securities in accordance with the intended methods of distribution by the sellers thereof set forth in thereof, use its best efforts to cause such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates Registration Statement to an underwritten Public Offering, such longer period as in the opinion of counsel become and remain effective for the underwriters a prospectus is required by law period referred to be delivered in connection accordance with sale of Registrable Securities by an underwriter or dealer) this Article III and comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities covered by such registration statement during Registration Statement;
(c) the Company will prepare and file with the SEC or other Governmental Authority having jurisdiction such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective continuously for the period referred to in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementthis Article III;
(d) to the extent the Registration Statement relates to an underwritten offering, if requested by the managing underwriter(s), if any, the Company will promptly prepare a prospectus supplement or post-effective amendment and include in such prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, 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 expeditiously as possible after the Company has received such request;
(e) to the extent the Registration Statement relates to an underwritten offering, the Company will furnish to each seller of Registrable Securities thereunder the managing underwriter(s), if any, and the Shareholder Parties such number of copies copies, without charge, of such registration statementRegistration Statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B under the 1933 Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the 1933 Act), each Free-Writing Prospectus all exhibits and other documents filed therewith and such other documents as such seller any Shareholder Party may reasonably request including in order to facilitate the disposition of the its Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities ActSecurities;
(f) use its commercially reasonable efforts to register, the Company will register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party any managing underwriter(s), if any, reasonably requests and do any and all other acts and things which that may be reasonably necessary or reasonably advisable to enable such seller each Shareholder Party to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (Shareholder Party, provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly the Company will notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Shareholder Parties at any time when a prospectus relating thereto to the Registrable Securities is required to be delivered under the Securities 1933 Act, upon discovery that, or upon the discovery of the happening of any event as a result of which which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any such selleras soon as reasonably practicable, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller the Shareholder Parties a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(h) the Company will notify the Shareholder Parties (i) when such Registration Statement or the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other Governmental Authority for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, and (iii) of the issuance by the SEC or other Governmental Authority of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for any of such purposes;
(i) the Company will to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent Company are then listed andlisted, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAapplicable;
(ij) the Company will provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request)Registration Statement;
(k) to the extent the Registration Statement relates to an underwritten offering, the Company will make available for inspection by any seller of Registrable Securitiesthe Shareholder Parties and their counsel, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by any such seller Shareholder Party or any underwriter, all financial and other books and records, pertinent corporate and business documents and properties documents relating to the business of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany and customarily provided in a secondary offering, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives employees and independent accountants to supply all information reasonably requested by any such seller, Shareholder Party or any underwriter, attorney, accountant or agent in connection with such registration statementRegistration Statement, provided that it will be a condition to such inspection and receipt of such information that the inspecting Person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to use commercially reasonable efforts to minimize the disruption to the Company’s business in connection with the foregoing;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required therebythe Registration Statement relates to an underwritten offering, is retained the Company will, if requested, obtain a “comfort” letter or letters from the Company’s independent public accountants in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light customary form and covering matters of the circumstances under which they were made, not misleadingtype customarily covered by “comfort” letters as any Shareholder Party reasonably requests;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules the extent the Registration Statement relates to an underwritten offering, the Company will, if requested, obtain a legal opinion and regulations “10b-5” disclosure letter of the CommissionCompany’s outside counsel in customary form and covering such matters of the type customarily covered by legal opinions or “10b-5” disclosure letters of such nature and reasonably satisfactory to the requesting Shareholder Party, which opinion or “10b-5” disclosure letter will be addressed to any underwriters and such Shareholder Party;
(n) permit any holder of Registrable Securities whothe Company will, in its good faith judgment (based on the advice of counsel)if applicable, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement Shareholder Parties and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRAthe Financial Industry Regulatory Authority, and any other agencies or authorities as may be reasonably necessary to enable the Shareholder Parties to consummate the disposition of such Registrable Securities;
(so) if such registration includes to the extent the Registration Statement relates to an underwritten public offering, the Company will enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and use its commercially reasonable best efforts to take all such other customary actions in connection therewith;
(p) the Company will use reasonable best efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed withdrawal of any order suspending the effectiveness of any Registration Statement filed pursuant to this Article III, or the underwriters, in customary form and covering such matters lifting of any suspension of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
qualification (tor exemption from qualification) provide a legal opinion of the Parent’s outside counsel, dated the effective date any of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities for sale in any jurisdiction at the time an Automatic Shelf Registration Statement is filedearliest reasonable practicable date, pay provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such fee at jurisdiction, or (iii) consent to general service of process in any such time or times as the Registrable Securities are to be soldjurisdiction; and
(wq) if an Automatic Shelf to the extent the Registration Statement has been outstanding for at least three (3) yearsrelates to an underwritten offering, at the end Company will endeavor in good faith to have appropriate officers of the third yearCompany prepare and make presentations at a reasonable and customary number of “road shows” and before analysts and rating agencies, refile a new Automatic Shelf Registration Statement covering as the case may be, and other information meetings reasonably organized by the underwriters and otherwise use reasonable best efforts to cooperate as reasonably requested by the Shareholder Parties and the underwriters in the offering, marketing or selling of the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Strongbridge Biopharma PLC)
Registration Procedures. In connection If and whenever the Company is required pursuant to this Agreement to effect the registration of any of the Registrable Securities under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file as promptly as reasonably possible with the Registration to be effected pursuant to the Resale Shelf Commission a Registration Statement, on a form available to the Company, with respect to such securities (which filing shall be made within 30 days after the receipt by the Company of a Request Notice) and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement Registration Statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities the distribution contemplated thereby (determined pursuant to such Resale Shelf Registration Statement subparagraph (provided that at least five (5g) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counselbelow);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a the distribution period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates determined pursuant to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealersubparagraph (g) below) and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(dc) furnish to each seller of Registrable Securities thereunder Selling Holder and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), prospectus and each Free-Writing Prospectus document incorporated by reference therein to the extent then required by the rules and such other documents regulations of the Commission) as such seller Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned covered by such sellerRegistration Statement;
(ed) during any period in which a prospectus is required to be delivered under the Securities Actif applicable, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such Registration Statement under such other the securities or blue sky laws of such jurisdictions as the lead underwriter or Selling Holders or, in the Applicable Approving Party case of an underwritten public offering, the managing underwriter, shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (request, provided that the Parent shall Company will not be required to (i) qualify generally to do transact business in any jurisdiction where it would is not otherwise be then required to so qualify but for this Section 4(f), (ii) consent or to take any action which would subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(ge) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement Selling Holder and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedunderwriter, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included contained in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality light of the foregoing, to arrange for at least two market makers to register circumstances then existing and as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities promptly as practicable amend or supplement the prospectus or take other appropriate action so that the prospectus does not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any 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 not misleading in the light of the circumstances under which they were made, not misleadingthen existing;
(mf) otherwise in the case of an underwritten public offering, furnish upon request, (i) on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such Registration Statement, an opinion of counsel for the Company dated as of such date and addressed to the underwriters and to the Selling Holders, stating that such Registration Statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations thereunder of the Commission (except that such counsel need express no opinion as to the financial statements, or any expertized schedule, report or information contained or incorporated therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters, and (ii) on the effective date of the Registration Statement and on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such Registration Statement, a letter dated such dates from the independent accountants retained by the Company, addressed to the underwriters and, if available, to the Selling Holders, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company and the schedules thereto that are included or incorporated by reference in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable requirements of the Securities Act and the published rules and regulations thereunder, and such letter shall additionally address such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) included in the Registration Statement in respect of which such letter is being given as the underwriters may reasonably request;
(g) make available for inspection by one representative of the Selling Holders, designated by a majority thereof, any underwriter participating in any distribution pursuant to such Registration Statement, and any attorney, accountant or other agent retained by such representative of the Selling Holders or underwriter (the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement, provided, however, that with respect to any Records that are confidential, the Inspectors shall take such action as the Company may reasonably request in order to maintain the confidentiality of the Records. For purposes of subsections (a) and (b) above with respect to demand registration only, the period of distribution of Registrable Securities in a firm commitment underwritten public offering shall be deemed to extend until the earlier of (a) the date each underwriter has completed the distribution of all securities purchased by it or (b) the date ninety (90) days subsequent to the effective date of such registration statement, and the period of distribution of Registrable Securities in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Securities covered thereby or one year;
(h) use its commercially reasonable efforts to keep effective and maintain for the period specified in subparagraph (g) a registration, qualification, approval or listing obtained to cover the Registrable Securities as may be necessary for the Selling Holders to dispose thereof and shall from time to time amend or supplement any prospectus used in connection therewith to the extent necessary in order to comply with all applicable rules and regulations of the Commissionlaw;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pi) use its commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the sellers thereof Selling Holders to consummate the disposition of such Registrable Securities;; and
(qj) cooperate with the holders of Registrable Securities covered enter into customary agreements and take such other actions as are reasonably requested by the registration statement and Selling Holders or the managing underwriter or agentunderwriters, if any, in order to expedite or facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities. Each Selling Holder, upon receipt of notice from the Company of the happening of any event of the kind described in subsection (e) of this Section 2.03, shall forthwith discontinue disposition of the Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by subsection (e) of this Section 2.03 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 incorporated by reference in the prospectus, and, if so directed by the Company, such Selling Holder will, or will request the managing underwriter or underwriters, if any, to, deliver to the Company (at the Company's expense) all copies in their respective counsel possession or control, other than permanent file copies then in such Selling Holder's possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give any such notice, the time periods mentioned in subsection (g) of this Section 2.03 shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each Selling Holder shall have received the copies of the supplemented or amended prospectus contemplated by subsection (e) of this Section 2.03 hereof or the notice that they may resume use of the prospectus. In connection with any filings required each registration hereunder with respect to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts the Company and each Selling Holder agrees to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter or underwriters selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between underwriters and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Registration Rights Agreement (Enron Capital & Trade Resources Corp), Registration Rights Agreement (Quanta Services Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 4 hereof to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a Registration Statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4 hereof, a registration statementshall be on Form S-1, and all amendments and supplements thereto and related prospectuses Form SB-2, or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement Registration Statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement Section 5 (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates a) above and as to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period Registration Statement in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to each seller of Registrable Securities thereunder and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents ) as such seller persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned Restricted Stock covered by such sellerRegistration Statement;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to the Restricted Stock covered by such Registrable Securities Registration Statement under such other the securities or blue sky laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)request;
(ge) promptly immediately notify in writing each seller of under such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement Registration Statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedunderwriter, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included contained in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact necessary required to make the statements be stated therein not misleading, andmisleading in the light of the circumstances then existing;
(f) use its best efforts to furnish, at the request of any such seller, on the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter date that Restricted Stock is delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange underwriters for at least two market makers to register as such with respect sale pursuant to such Registrable Securities with FINRA;
registration: (i) provide a transfer agent and registrar for all an opinion dated such Registrable Securities not later than the effective date of counsel representing the Company for the purposes of such registration statement;registration, addressed to the underwriters in a form and substance as is customarily given to underwriters in an underwritten public offering, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters in a form and substance as is customarily given by independent public accountants to underwriters in an underwritten public offering; and
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kg) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition distribution pursuant to such registration statement Registration Statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant accountant, or agent in connection with such registration statement;
Registration Statement. For purposes of Sections 5 (la) take all reasonable actions to ensure that any Free-Writing Prospectus utilized and (b) above, the period of distribution of Restricted Stock in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, a firm commitment underwritten public offering shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be an underwriter or a controlling Person deemed to extend until the earlier of the Parent to participate in sale of all Restricted Stock covered thereby or nine months after the preparation effective date thereof. In connection with each registration hereunder, the selling Holders of such registration or comparable statement and to require the insertion therein of material furnished Restricted Stock will furnish to the Parent Company in writing, which in writing such information with respect to themselves and the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent proposed distribution by them as shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement Federal and the managing underwriter applicable state securities laws or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders Company may reasonably request;
(r) cooperate . In connection with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required pursuant to be made with FINRA;
(s) if such registration includes Section 4 hereof covering an underwritten public offering, use its commercially reasonable efforts the Company agrees to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwritersmanner herein, in customary such form and covering containing such matters of provisions as are customary in the type customarily covered by cold comfort letters as the underwriters in securities business for such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivearrangement.
Appears in 2 contracts
Sources: Registration Rights Agreement (HC Innovations, Inc.), Registration Rights Agreement (HC Innovations, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders case of each registration of Registrable Securities have requested that any Registrable Securities be registered effected by the Company pursuant to this AgreementSection 2.1 (including pursuant to Section 2.1(c)(i)) hereof, the Parent Company shall keep the Investors advised as to the initiation of each such registration and as to the status thereof. The Company shall use its commercially reasonable efforts best efforts, within the limits set forth in this Section 2.4 and subject to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereofSection 2.1(e), and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus prospectuses used in connection therewith with such Registration Statement as may be necessary to keep such registration statement Registration Statement effective for a period ending when all of the securities covered by and current and, during such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act oreffective period, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(db) furnish to each seller of Registrable Securities thereunder the Investors such number numbers of copies of such registration statementa prospectus, each amendment and supplement theretoincluding preliminary prospectuses, in conformity with the prospectus included in such registration statement (including each preliminary prospectus)requirements of the Securities Act, each Free-Writing Prospectus and such other documents as such seller the Investors may reasonably request in order to facilitate the disposition of Registrable Securities;
(c) use its reasonable best efforts to register and qualify the Registrable Securities owned covered by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities Registration Statement under such other securities or blue sky laws of such jurisdictions in the United States as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided Investors, provided, that the Parent Company shall not be required in connection therewith or as a condition thereto to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f), (ii) or file a general consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)jurisdictions;
(gd) promptly notify subject to Section 2.2(d), in writing each seller the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering and take such other usual and customary action as the Investors may reasonably request in order to facilitate the disposition of such Registrable Securities in furtherance of this Agreement;
(ie) after it receives notice thereof, of notify the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Investors at any time when a prospectus relating thereto to a Registration Statement covering any Registrable Securities is required to be delivered under the Securities Act, Act of the happening of any event as a result of which the prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request light of any such seller, the Parent promptly circumstances then existing. The Company shall prepare, file with the Commission and furnish use its reasonable best efforts to each such seller a reasonable number of copies of a amend or supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of cause such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant prospectus not to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingthen existing;
(mf) otherwise use its commercially reasonable efforts provide a transfer agent and registrar for all Registrable Securities registered pursuant to comply with such Registration Statement and, if required, a CUSIP number for all applicable rules and regulations such Registrable Securities, in each case not later than the effective date of the Commissionsuch Registration Statement;
(ng) permit any holder of Registrable Securities whoif requested by an Investor, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable best efforts to cause such the Company’s transfer agent to remove any restrictive legend from any Registrable Securities covered being transferred by such registration statement 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 an Investor, within two (2) business days of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(rh) cooperate with each holder cause to be furnished, at the request of the Investors, on the date that Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel are delivered to underwriters for sale in connection with any filings required an underwritten offering pursuant to be made with FINRA;
this Agreement, (si) if an opinion, dated such registration includes date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, use its commercially reasonable efforts addressed to obtain the underwriters by such counsel, and (ii) a cold comfort letter or letters from the Parentindependent certified public accountants of the Company, in form and substance as is customarily given by the Company’s independent certified public accountants and to underwriters in an underwritten public offering, addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(wi) if an Automatic Shelf cause all such Registrable Securities included in a Registration Statement has been outstanding pursuant to this Agreement to be listed on each securities exchange or other securities trading markets on which Common Stock is then listed.
(j) for at least three (3) years, at the end sole purpose of enabling the Investors to conduct an investigation as to the accuracy of the third year, refile a new Automatic Shelf Registration Statement covering for the Registrable Securitiespurpose of reducing or eliminating the Investors’ liability under the Securities Act, andthe Company shall make available for inspection by one firm of attorneys and one firm of accountants or other agents retained by the Investors (collectively, if at the “Inspectors”) following reasonable notice all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility and cause the Company’s officers to supply such information which any time when Inspector may reasonably request for purposes of such due diligence. The Company shall not disclose material nonpublic information to the Parent is required to re-evaluate its WKSI status Inspectors unless the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile Company and the registration statement on Form S-3 Investors agree and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveInvestors and the Inspectors enter into an appropriate confidentiality agreement with the Company with respect thereto.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement, Convertible Note Purchase Agreement (Kodiak Sciences Inc.)
Registration Procedures. In connection with the a Registration to be effected Statement prepared pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Section 2.01 pursuant to this Agreementwhich Participating Shares will be offered and sold, the Parent Company shall use its commercially reasonable efforts effect such registration to effect the registration and permit the sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possiblecooperate in the facilitation of the resale of such Registrable Shares and shall use its reasonable best efforts to:
(ai) except in connection make, as promptly as practicable, all required filings with a Piggyback RegistrationFINRA, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effectiveto remain effective as provided herein; provided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each a “Free Writing Prospectus”)), the Parent Company shall furnish or otherwise make available to the Participating Holders (who shall be permitted to furnish to their counsel selected by and the Applicable Approving Party managing underwriter(s), if any), draft copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel, and 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. The Participating Holders shall select one counsel to represent all such Participating Holders for purposes of this Agreement. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including Free Writing Prospectuses) to which Participating Holders or the 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; provided, that the Company shall not be liable for any breach of or default under this Agreement arising as a result of the Company’s cooperation with this paragraph (i);
(bii) prepare and file with the SEC as promptly as practicable such amendments and supplements 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 during the Effective Period provided herein and comply in all material respects with the provisions of the Securities Act applicable to the Company with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act 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 set forth in such Registration Statement;
(iii) cause all Participating Shares covered by such Registration Statement to be continually listed on NASDAQ or on the principal securities exchange or interdealer quotation system on which the Common Stock is then listed or quoted;
(iv) notify each holder promptly the Participating Holders after becoming aware of Registrable Securities any of the events described in sub-clauses (A) through (F) of this paragraph (iv), to provide the Participating Holder copies of the relevant documentation (if requested), and in the case of sub-clauses (B) through (F), to provide the Participating Holders a reasonable opportunity to review and comment on the Company’s response thereto (if requested): (A) when such Registration Statement, or any related Prospectus or any Free Writing Prospectus or any amendment or supplement thereto has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the SEC or any other federal or U.S. state securities authority for amendments or supplements to such Registration Statement or the related Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of any registration statement such Registration Statement or the initiation or threatening of any proceedings for that purpose, (BD) 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 2.03(a)(xii) below cease to be true and correct in any material respect, (E) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification or exemption from qualification of the Registrable Securities such Participating Shares for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (CF) during the effectiveness Effective Period, of each registration the happening of any event or the existence of any fact which makes any statement filed hereunderin 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 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 the light of the circumstances under which they were made, not misleading (which notice shall notify the Participating Holders only of the occurrence of such an event or fact and shall provide no additional information regarding such event or fact to the extent such information would constitute material non-public information);
(cv) prepare and file with during the Commission Effective Period, obtain the withdrawal of any stop order or other order enjoining or suspending the use or effectiveness of such amendments and supplements to such registration statement and Registration Statement or any post-effective amendment thereto or the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all lifting of any suspension of the securities covered by such registration statement have been disposed qualification (or exemption from qualification) of in accordance with any of the intended methods of distribution by the sellers thereof set forth in such registration statement (but not Participating Shares for sale in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementjurisdiction;
(dvi) furnish to each seller if requested by the Participating Holders or the managing underwriter(s) of Registrable Securities thereunder an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such number of copies of information as the Participating Holders or such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectusmanaging underwriter(s), each Free-Writing Prospectus and such other documents as such seller the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Participating Shares in accordance with the intended method or methods of distribution of such sellersecurities set forth in the Registration Statement 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 the Company shall not be required to take any actions under this Section 2.03(a)(vi) that are not, in the opinion of external counsel for the Company, in compliance with applicable law;
(evii) during any period in which a prospectus is required deliver promptly to be delivered under the Securities ActParticipating Holders, promptly file all documents required to be filed with upon written request therefor, copies of (A) material and non-sensitive correspondence between the CommissionSEC and the Company, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration any comment and response letters with respect to such Registrable Securities Registration Statement (but excluding any comment and response letters relating to any documents incorporated or deemed incorporated by reference into such Registration Statement) and (B) 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 Participating Shares in accordance with the intended method or methods of disposition thereof; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Participating Holders of Participating Shares and the underwriters, if any, in connection with the offering and sale of the Participating Shares covered by such Prospectus and any such amendment or supplement thereto;
(viii) provide and cause to be maintained a transfer agent and registrar for all Participating Shares covered by such Registration Statement not later than the effective date of such Registration Statement;
(ix) cooperate with the Participating Holders of Participating Shares and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Participating Shares to be sold under such other Registration Statement in a form eligible for deposit with the Depository Trust Company and not subject to any stop transfer order with any transfer agent, and cause such Participating Shares to be issued in such denominations and registered in such names as instructed by the Participating Holder or the managing underwriter(s), if any;
(x) to register or qualify or cooperate with the selling Participating Holders of Participating Shares, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Participating Shares for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller Participating Holders of Participating Shares to consummate the disposition of such Participating Shares in such jurisdictions jurisdiction in accordance with the intended method or methods of the Registrable Securities owned by such seller (disposition thereof; provided that nothing in this Section 2.03(a)(x) shall require the Parent shall not be required Company to (iA) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)be so qualified, (iiB) execute or file any general consent to general 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 Participating Shares covered by a Registration Statement prepared pursuant to Section 2.01 in any such jurisdiction where it is not already subject to service of process, or (iiiD) subject itself to taxation in any such jurisdiction)jurisdiction where it would not otherwise be obligated to do so;
(gxi) promptly notify in writing each seller upon the occurrence of such Registrable Securities (iany event contemplated by Section 2.03(a)(iv)(D) after it receives notice thereofabove, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to the Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Actincorporated therein by reference, of the happening of or file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus other required document so that, as thereafter delivered to the purchasers of such Registrable Securitiesthe Participating Shares being sold thereunder, such prospectus shall Prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(oxii) in the event of the issuance case of any stop order suspending underwritten offering in which any Participating Holders participates, enter into, a customary underwriting agreement containing such provisions (including customary provisions for indemnification, lockups, opinions of counsel and comfort letters), in form reasonably satisfactory to the effectiveness of a registration statementCompany and outside legal counsel, or of any order suspending or preventing and take all such other customary and reasonable actions as the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal managing underwriters of such order;
(p) use its commercially reasonable efforts offering may request in order to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities;
Participating Shares, including adding information requested by the managing underwriters to the Prospectus, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, and make such customary and reasonable representations and warranties (qin form reasonably satisfactory to the Company and outside counsel) cooperate with to the holders of Registrable Securities covered by the registration statement such Participating Shares and the managing underwriter or agentunderwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters business of the type 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 covered made by legal opinions of such natureissuers to underwriters in underwritten offerings, which opinion shall be addressed to and, if true, confirm the underwriterssame if and when requested;
(uxiii) if in the Parent files an Automatic Shelf Registration Statement covering case of any Registrable Securitiesunderwritten offering in which any Participating Holders participates, (A) make reasonably available, for inspection by the managing underwriters of such underwritten offering and one law 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 in connection with such offering, (C) make the Company’s independent auditor available for any such managing underwriters’ due diligence and use its commercially reasonable efforts to remain a WKSI have them provide customary comfort letters to such underwriters in connection therewith and to each Participating Holder selling Participating Shares in such offering (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and not become an ineligible issuer (as defined D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which legal opinions (in Rule 405form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)) during to such underwriters and to each Participating Holders selling Participating Shares in such offering in connection therewith (subject to delivery to outside counsel of each such Participating Holders’ representation that it is knowledgeable with respect to the period during which due diligence review process that an underwriter would perform in connection with an offering of securities registered pursuant to the Securities Act), covering the matters customarily covered in opinions requested in underwritten offerings and such Automatic Shelf Registration Statement other matters as may be reasonably requested by such counsel and underwriters; provided, however, that any such records and other information provided under clauses (A) and (B) above that is required not generally publicly available shall be subject to remain effectivesuch confidential treatment as is customary for underwriters’ due diligence reviews (provided that the foregoing shall not require the Company (a) to provide access to or otherwise make available or furnish any books, contracts or records if and to the extent the provision of such information would, in the advice of external counsel, violate a confidentiality, non-disclosure or other similar agreement of the Company in effect as of the date hereof, (b) to provide access to or otherwise make available or furnish any information if and to the extent that the provision of such information would in the good faith judgment of the Company based on advice of counsel jeopardize any attorney-client, work product or other legal privilege or protection, or (d) to provide access to or otherwise make available or furnish any information if and to the extent that the provision of such information would in the good faith judgment of the Company based on advice of counsel violate any applicable law);
(vxiv) if in the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filedcase of any underwritten offering in which any Participating Holders participates, pay such fee at such time or times as the Registrable Securities are cause its management to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially their reasonable best efforts to refile support the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.marketing of
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement, Registration Rights and Lock Up Agreement (Albany Molecular Research Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have Whenever Crusader has requested that any Registrable Securities be registered pursuant to the provisions of this AgreementSection 1, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereofthereof as set forth in the written request, and pursuant thereto the Parent shall Company shall, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1SEC registration statement(s) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities securities on the appropriate forms, and use commercially reasonable its best efforts to cause such registration statement statement(s) to become effectiveand remain effective in accordance with Section 1.7(b) hereof and in accordance with all laws, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission rules and effective, an regulations applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements to such registration statement statement(s) and the prospectus prospectus(es) used in connection therewith as may be necessary to keep such registration statement statement(s) effective for a period ending when until the earlier of (i) the sale of all of Registrable Securities covered thereby, (ii) the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution date required therefor by the sellers thereof set forth underwriters in the underwriting agreement, or (iii) 120 days following the effectiveness of such registration statement (but not except in any event before the expiration case of any longer period required under a registration effected pursuant to Section 1.6, in which case, the Securities Act or, if Company will take such actions as are necessary to cause the registration statement relates to an underwritten Public Offering, such longer period as in remain effective until the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of all Registrable Securities by an underwriter or dealercovered thereby) (the “Effectiveness Period”), and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementstatement(s);
(dc) furnish to each seller of Registrable Securities thereunder Crusader such number of copies of such registration statementany summary prospectus or other prospectus, each amendment and supplement thereto, the prospectus included in such registration statement (including each a preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as such seller Crusader may reasonably request in order to facilitate the public sale or other disposition of such Registrable Securities;
(d) use its best efforts to register or qualify the Registrable Securities owned covered by such seller;
(eregistration statement(s) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Crusader shall reasonably requests request and do any and all other acts and or things which may be reasonably necessary or advisable to enable such seller Crusader to consummate the public sale or other disposition in such jurisdictions of the such Registrable Securities owned by such seller (provided Securities; provided, however, that the Parent 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 Section 4(f), (ii) consent to general service of process for all purposes in any jurisdiction where it is not then subject to process, qualify to do business as a foreign corporation where it would not be otherwise required to qualify or submit to liability for state or local taxes where it is not otherwise liable for such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)taxes;
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iiie) at any time when a prospectus relating thereto covered by such registration statement(s) is required to be delivered under the Securities ActAct within the appropriate period mentioned in Section 1.7(b) hereof, promptly notify Crusader and each underwriter and (if requested by Crusader) confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or blue sky laws or the initiation of any proceedings for that purpose, and (iii) of the happening of any event as a result of which the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances then existing and, at the request of any such sellerCrusader, the Parent promptly shall prepare, file with the Commission and furnish to each such seller Crusader a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiesshares, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances then existing;
(f) if the Company has delivered preliminary or final prospectuses to Crusader and after having done so the prospectus is amended to comply with the requirements of the Securities Act, promptly notify Crusader and, if requested, Crusader shall immediately cease making offers of Registrable Securities and return all prospectuses in Crusader’s possession to the Company, other than permanent file copies retained by Crusader. The Company shall promptly provide Crusader with revised prospectuses and, following receipt of the revised prospectuses, Crusader shall be free to resume making offers of the Registrable Securities;
(g) furnish, at the request of Crusader on the date such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 1, if such Registrable Securities are being sold through underwriters, or, if such Registrable Securities are not being sold through underwriters, on the date that the registration statement with respect to such Registrable Securities becomes effective, (i) an opinion, dated such date, of outside counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to Crusader and (ii) a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and Crusader;
(h) if any proposed registration effected pursuant to Section 1 involves an underwritten public offering, (i) subject to Section 1.2 select a reputable managing underwriter to underwrite such public offering, (ii) cause all Registrable Securities to be listed for trading on the principal national securities exchange (including, without limitation, the NASDAQ National Market System) (as defined in the Exchange Act) where the Company’s stock is listed for trading, or the NASD Over the Counter Bulletin Board, and (iii) enter into an underwriting agreement with the underwriter providing for such representations, warranties, covenants, conditions and indemnities as may reasonably be requested by the underwriter;
(i) before filing a registration statement or amendment thereto, furnish to Crusader and its counsel and other representatives and the underwriters, if any, copies of each such registration statement or amendment proposed to be filed, which documents shall be made available on a timely basis for review and comment by Crusader, the underwriters (if any) and their respective representatives;
(j) make generally available to the Company’s security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, as promptly as practicable, but in any event no later than ninety (90) days after the end of the 12-month period beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of a 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-KSB and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(k) if requested by the managing underwriter or Crusader, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or Crusader reasonably requests to be included therein, including, without limitation, with respect to the Registrable Securities being sold by Crusader, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(l) as promptly as practicable after filing with the SEC any document which they were madeis incorporated by reference into a registration statement (in the form in which it was incorporated), not misleadingdeliver a copy of each such document to Crusader, if requested by Crusader;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement Crusader and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities to be sold under the any registration statement (if any), and enable such securities to be in such denominations and registered in such names as the managing underwriter, underwriter or agent, if any, or Crusader may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such holders may requestregistration statement a supply of such certificates;
(rn) promptly make available for inspection by Crusader, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by Crusader or any such underwriter (collectively, the “Inspectors”), upon reasonable advance notice and during normal business hours, all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement, provided 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 (n) 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 (i) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC of documents provided supplementally or otherwise or has filed an application for SEC confidential treatment of such information which is pending or (ii) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) each party requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and; provided further, that each party 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;
(o) provide a CUSIP number for the Registrable Securities included in any registration statement not later than the effective date of such registration statement;
(p) cooperate with each holder of Registrable Securities covered by the registration statement Crusader 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 FINRAthe National Association of Securities Dealers, Inc. (“NASD”);
(q) promptly file all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(r) notify Crusader promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information;
(s) if prepare and file with the SEC promptly any amendments or supplements to such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwritersstatement or prospectus which, in customary form and covering such matters the opinion of counsel for the Company or the managing underwriter, is required in connection with the distribution of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably requestRegistrable Securities;
(t) provide a legal opinion advise Crusader, promptly after it shall receive notice or obtain knowledge thereof, of the Parent’s outside counsel, dated issuance of any stop order by the effective date SEC suspending the effectiveness of such registration statement (and, or the initiation or threatening of any proceeding for such purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall stop order should be addressed to the underwriters;issued; and
(u) if Crusader so requests, request acceleration of effectiveness of the Parent files an Automatic Shelf Registration Statement covering any Registrable Securitiesregistration statement from the SEC, use its commercially reasonable efforts provided that at the time of such request, the Company does not, in good faith, believe it is necessary to remain a WKSI amend further the registration statement in order to comply with the provisions of this Section 1.7. If the Company wishes to further amend the registration statement prior to requesting acceleration, it shall have five (and not become an ineligible issuer (as defined in Rule 405)5) during the period during which such Automatic Shelf Registration Statement is required business days to remain effective;so amend prior to requesting acceleration.
(v) if NASDR Rule 2710 requires any broker-dealer to make a filing prior to executing a sale by Crusader, make an issuer filing with the Parent does not NASDR, Inc. Corporate Financing Department pursuant to NASDR Rule 2710(b)(10)(A)(i) and respond within five (5) trading days to any comments received from NASDR in connection therewith, and pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivein connection therewith.
Appears in 2 contracts
Sources: Registration Rights Agreement (Consumer Direct of America), Common Stock Purchase Agreement (Consumer Direct of America)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by ----------------------- the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, other than in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary on Form S-3 or any successor thereto if the Company is a registrant entitled to comply with applicable securities laws, use such Form) with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its reasonable best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be -------- ------- required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in light of the request circumstances then existing;
(g) as soon as practicable upon the occurrence of any such sellerevent contemplated by Section 7(f), the Parent promptly shall prepare, prepare and file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or post-effective amendment to such registration statement or the prospectus contained in such registration statement, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the shares of Restricted Stock covered thereby, the prospectus contained in such Registrable Securities, such prospectus shall registration statement will not contain an any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the obligation to prepare and file any such supplement, -------- ------- post-effective amendment or other document shall be suspended (a "Suspension") if the Company shall furnish to the holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration to be effected at such time due to any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries; provided further, that the Company shall only be permitted to effectuate one (1) -------- ------- Suspension in any twelve (12) month period and any such suspension will be lifted by the Company as soon as practicable and will not, in any event, extend for more than 60 days with respect to any such specified event;
(h) cause if the offering is underwritten and at the request of any seller of Restricted Stock, use its reasonable best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such Registrable Securities counsel need not express any opinion as to financial statements contained therein) and (C) to such other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such seller or its counsel and (ii) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters and to such seller, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
. Upon receipt of any notice from the Company of any event of the kind described in Section 7.3(f), each seller of Restricted Stock (lx) take promptly will discontinue disposition of any shares of Restricted Stock pursuant to such registration statement until such seller of Restricted Stock has received copies of the supplemented or amended prospectus contemplated by Section 7(g) (it being understood that such discontinuance shall be deemed a Suspension subject to the limitations on Suspensions set forth in Section 7(g)), (y) thereafter, will utilize and distribute only such supplemented or amended prospectus, and (z) if so directed by the Company, will deliver to the Company all reasonable actions copies of the prospectus covering such shares of Restricted Stock in such party's possession at the time of receipt of such suspension notice. For purposes of Section 7(a) and 7(b), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to ensure that extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any Free-Writing Prospectus utilized in other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby and 180 days following effectiveness of registration. In connection with any Piggyback Registration hereunder complies in all material respects with the Securities Acteach registration hereunder, is filed in accordance with the Securities Act each seller of Restricted Stock will furnish to the extent required therebyCompany in writing such information with respect to itself and the proposed distribution by it as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws, and will notify the Company promptly upon the happening of any event during the period any registration statement is retained effective that makes any statement regarding such seller made in accordance with a registration statement or the Securities Act to prospectus contained therein untrue in any material respect or which requires the extent required thereby and, when taken together with making of any changes in a registration statement or the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary prospectus contained therein in order to make the statements thereintherein regarding such seller, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate . In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ifx Corp), Registration Rights Agreement (Ifx Corp)
Registration Procedures. In connection with the Registration to be effected registration obligations of the Company pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant in accordance with Sections 2 and 3 hereof (and subject to this AgreementSections 2 and 3 hereof), the Parent Company shall use its commercially reasonable efforts to effect the such registration and to permit the sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:(subject to Sections 2 and 3 hereof):
(a) except At least three business days before filing a Registration Statement or Prospectus, furnish to the Holders (or their representatives) who are participating in connection with such Registration Statement and the underwriters, if any, copies of all such documents (which may be drafts or proofs) proposed to be filed, which documents will be subject to the review of such Holders and such underwriters (and their respective counsel), and, in the case of a Piggyback Demand Registration, the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereof to which the registering Holders or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC a Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, within 60 days following receipt of such request, file with subject to the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, Company's right to terminate or abandon a registration statementpursuant to Section 3(c) hereof, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement Registration Statement to become effective, or effective and remain effective as provided herein;
(2c) in the case an effective Resale Shelf Registration Statement is on prepare and file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant SEC such amendments (including post-effective amendments) to such Resale Shelf Registration Statement Statement, and such supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such Registration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that at least five (5) Business Days 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 before filing a registration statement Registration Statement or prospectus Prospectus, or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act), the Parent Company shall furnish to the Holders of Registrable Shares covered by such Registration Statement and their counsel selected by the Applicable Approving Party for their reasonable review and comment, copies of all such documents proposed required to be filed, which documents shall be subject to the review and comment of such counsel);
(bd) notify each holder the Holders of any Registrable Securities Shares covered by such Registration Statement promptly and (if requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (Aiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of any registration statement such Registration Statement or the initiation of any proceedings for that purpose, (Biv) of the receipt by the Parent or its counsel 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 in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (Cv) of the happening of any event that requires the making of any changes in such Registration Statement, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(e) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of each registration statement filed hereundersuch 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;
(cf) prepare and file with furnish to the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all Holder of the securities any Registrable Shares covered by such registration statement have been disposed Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of in accordance with the intended methods of distribution such Registration Statement, as declared effective by the sellers thereof set forth SEC, and of each post-effective amendment thereto, in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be delivered in connection with sale of Registrable Securities incorporated therein by an underwriter or dealer) reference; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder deliver, without charge, such number of copies of such registration statementthe preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment and or supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned Shares of such Holder covered by such seller;
(e) during any period Registration Statement in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed conformity with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) requirements of the Securities Act;
(fg) prior to any public offering of Registrable Shares covered by such Registration Statement, use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Shares for offer and sale under such other the securities or blue sky Blue Sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Holders of such Registrable Shares shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition request in such jurisdictions of the Registrable Securities owned by such seller (provided writing; PROVIDED, HOWEVER, that the Parent Company shall not in no event be required to (i) qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it would is not otherwise be required at the time so qualified or to qualify but for this Section 4(f), (ii) execute or file a general consent to general service of process in any such jurisdiction where it has not theretofore done so or (iii) to take any action that would subject itself it to general service of process or taxation in any such jurisdiction)jurisdiction where it is not then subject;
(gh) promptly notify in writing each seller upon the occurrence of such Registrable Securities (iany event contemplated by paragraph 4(d)(v) after it receives notice thereofabove, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to such Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Act, of the happening of incorporated therein by reference and file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesShares being sold thereunder (including upon the termination of any Delay Period), such prospectus shall Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities required to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party stated therein or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(mi) otherwise use its 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 with all applicable rules and regulations of the CommissionSEC and any securities exchange or regulatory body;
(nk) permit any holder on or before the effective date of Registrable Securities whosuch Registration Statement, in its good faith judgment (based on provide the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person transfer agent of the Parent to participate Company for the Registrable Shares with printed certificates for the Registrable Shares covered by such Registration Statement which are in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be includeda form eligible for deposit with The Depository Trust Company;
(ol) in the event if such offering is an Underwritten Offering, make available for inspection by any Holder of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock Registrable Shares included in such registration statement for sale Registration Statement, any underwriter participating in any jurisdictionoffering pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the Parent "INSPECTORS"), such financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and Affiliates (collectively, the "RECORDS"), as shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable them to exercise their due diligence responsibilities; PROVIDED, HOWEVER, that the sellers thereof Records that the Company determines, in good faith, to consummate be confidential and which it notifies the Inspector in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company, which agreement shall permit the release of such Records if such release is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; PROVIDED, HOWEVER, that each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such 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 disclosure of 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 Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement Shares, and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriterconnection, or agent, if any, or such holders may request;
(ri) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a 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 as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort letter comfort" letters and updates thereof from the Parent’s 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 such 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 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. 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 not to effect any public sale or distribution of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, during the period commencing with the effective date of any underwritten Demand or Piggyback Registration and until the earlier of (A) the abandonment of such offering or (B) the termination of any "hold back" period reasonably requested by cold comfort letters as the underwriters (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 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 registration 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. In addition, the Company may require each Holder of Registrable Shares covered by a Registration Statement to agree not to effect any public sale or distribution of Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, during the period commencing with the effective date of any underwritten Demand or Piggyback Registration and until the earlier of (A) the abandonment of such offering or (B) the termination of any "hold back" period reasonably request;
requested by the underwriters (t) provide with such exceptions as are customary or agreed with the managing underwriter). In addition, if the Holders have been given an opportunity to participate in a legal opinion Registration Statement pursuant to Section 3(a), any Holder who owns Registrable Shares representing 1% or more of the Parent’s outside counselthen outstanding shares of Common Stock of the Company will agree, dated if so requested by the Company, not to effect any public sale or distribution of Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, during the period commencing with the effective date of any underwritten Piggyback Registration and until the earlier of (A) the abandonment of such offering or (B) 30 days after the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date Piggyback Registration; provided that each officer and director of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters Company who beneficially owns 1% or more of the type customarily covered by legal opinions then outstanding Company Common Stock and each stockholder of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer Company who owns "restricted" shares of Company Common Stock (as defined in Rule 405144) constituting 1% or more of the then outstanding Company Common Stock agrees to the same hold-back arrangements. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(d)(ii), 4(d)(iii), 4(d)(iv) during or 4(d)(v) hereof, that such Holder shall forthwith discontinue disposition of any Registrable Shares covered by such Registration Statement or the related Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(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, if requested by the Company, the Holder shall deliver to the Company (at the expense of the Company) all copies then in its possession, other than permanent file copies then in such Automatic Shelf Registration Statement is required to remain effective;
(v) if holder's possession, of the Parent does not pay the filing fee Prospectus covering the such Registrable Securities Shares at the time an Automatic Shelf of receipt of such request. Each Holder of Registrable Shares covered by a Registration Statement is filed, pay further agrees not to utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the offering of such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveShares.
Appears in 2 contracts
Sources: Registration Rights Agreement (H & F Investors Iii Inc), Registration Rights Agreement (H & F Investors Iii Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Company is required to effect the registration and of any Registrable Securities under the Securities Act as provided in Section 2, the Company shall use its reasonable best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall cooperate in the sale of such Registrable Securities and shall, as expeditiously as reasonably possible:
(a) except prepare and file, in connection each case as promptly as practicable, with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Stockholders thereof or by the Company in accordance with the Securities Act and intended method or methods of distribution thereof, make all applicable rules and regulations promulgated thereunder required filings with FINRA, and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effectiveto remain effective as provided herein; provided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each a “Free Writing Prospectus”)), the Parent Company shall furnish or otherwise make available to WildStar, counsel selected by to the Applicable Approving Party Stockholders and the managing underwriter(s), if any, copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel, and 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 officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including Free Writing Prospectuses) with respect to a Demand Registration to which WildStar or the 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;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements 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 a during the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 during Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such period 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 WildStar, its counsel and the managing underwriter(s) of any Underwritten Offering (i) when a Registration Statement, pre-effective amendment to any Registration Statement, 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 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(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 such Registrable Securities for sale in any jurisdiction, or the initiation 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, 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 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 the light of the circumstances under which they were made, not misleading (which notice shall notify WildStar 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) furnish use its reasonable best efforts to each seller 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 thereunder such number for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by WildStar, or, in the case of copies an Underwritten Offering, the managing underwriter(s) of such registration statementUnderwritten Offering, each promptly include in a Prospectus supplement or post-effective amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectusinformation as WildStar or such managing underwriter(s), each Free-Writing Prospectus and such other documents as such seller the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by in accordance with the intended method or methods of distribution of such seller;
(e) during any period securities set forth in which a prospectus is the Registration Statement 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 the Company shall not be required to be delivered take any actions under this Section 4(e) that, in the Securities Actopinion of counsel for the Company, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actviolate applicable law;
(f) deliver to WildStar, counsel to the selling Stockholders, 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 (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 the Company, 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 selling Stockholders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) use its commercially reasonable best efforts to registerregister or qualify, qualify or secure an cooperate with WildStar, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration with respect to or qualification) of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller Stockholders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions jurisdiction in accordance with the intended method or methods of the Registrable Securities owned by such seller (provided disposition thereof; provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)qualify, (ii) consent subject itself to taxation in any jurisdiction wherein it is not so subject or (iii) take any action that would subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation where it is not then so subject, in any such jurisdictioneach case but for this Section 4(g);
(gh) promptly notify in writing cooperate with WildStar 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 seller Stockholder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Stockholder 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 WildStar 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;
(i) after it receives notice thereofupon the occurrence of any event contemplated by Section 4(c)(vi) above, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to the Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Actincorporated therein by reference, of the happening of or file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus 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 contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(mj) otherwise provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of such Registration Statement, and use its commercially reasonable best efforts to comply with all applicable rules and regulations procure the cooperation of the CommissionCompany’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holders or any managing underwriter(s);
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pk) use its commercially reasonable best efforts to cause such all shares of Registrable Securities covered by such registration statement any Registration Statement to be registered with or approved by listed on each primary national securities exchange (if any) on which shares of the particular class of Registrable Securities are at that time listed, and enter into such customary agreements, including a supplemental listing application and indemnification agreement in customary form;
(l) in the case of any Underwritten Offering in which any Stockholder participates, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other governmental agencies or authorities customary and reasonable actions as the managing underwriters of such offering may be necessary request in order to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities, including adding information requested by the managing underwriters to the Prospectus, and making 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 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;
(qm) cooperate in the case of any Underwritten Offering in which any Stockholder participates, (A) make reasonably available, for inspection by the managing underwriters of such Underwritten 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 holders Company’s independent auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each Stockholder selling Registrable Securities in such offering (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 legal opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)) to such underwriters and to WildStar 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 counsel and underwriters; provided, however, that any such records and other information provided under clauses (A) and (B) above that is not generally publicly available shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(n) in the case of any Underwritten Offering in which any Stockholder participates, cause its management to use their reasonable best efforts to support the marketing of the Registrable Securities covered by the registration statement Registration Statement (including participation in such number of “road shows” as the underwriter(s) reasonably request, and in any management diligence meetings or teleconferences as the underwriter(s) or their counsel reasonably request);
(o) make available for inspection by a single representative of the selling Stockholders designated by WildStar and the managing underwriter or agentunderwriter(s), if any, and their respective attorneys or accountants, at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company, and cause the officers, directors and employees of the Company to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable supply all information in each case reasonably requested by any such securities to be representative, managing underwriter(s), attorney or accountant in connection with such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may requestRegistration Statement;
(rp) cooperate with each holder seller of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;; and
(sq) if such registration includes an underwritten public offering, otherwise use its commercially reasonable best efforts to obtain a cold comfort letter from the Parent’s independent public accountants comply with all applicable rules and addressed to the underwriters, in customary form and covering such matters regulations of the type customarily covered by cold comfort letters SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the underwriters in such registration reasonably request;
(t) provide a legal opinion period of at least twelve months beginning with the first day of the ParentCompany’s outside counsel, dated first full calendar quarter after the effective date of such registration any Registration Statement, which earnings statement (and, if such registration includes an underwritten Public Offering, dated will satisfy the date provisions of Section 11(a) of the closing under the underwriting agreement), with respect Securities Act and Rule 158 thereunder. The Company may require each Stockholder as to which any registration is being effected to furnish to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto Company in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.writing
Appears in 2 contracts
Sources: Reclassification Agreement (Sands Richard Et Al), Reclassification Agreement (Constellation Brands, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Agreement to effect the registration of Registrable Securities, the Company shall:
(a) promptly prepare and file with the sale Commission a registration statement with respect to such Registrable Securities on any form that may be utilized by the Company and that shall permit the disposition of such the Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable its diligent efforts to cause such registration statement to become effectiveeffective as promptly as practicable and remain effective thereafter as provided in this Agreement, or (2) in provided, that if the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Investor’s Registrable Securities pursuant are covered by such registration statement, then prior to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the Parent shall initial filing of any registration statement, the Company will furnish to the Investor, its counsel selected by and the Applicable Approving Party underwriters copies of all such documents proposed to be filed, which filed sufficiently in advance of filing to provide them with a reasonable opportunity to review such documents shall be subject to the review and comment of such counsel)thereon;
(b) notify prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to keep such registration statement effective and current and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement, including such amendments (including post-effective amendments) and supplements as may be necessary to reflect the intended method of disposition by the prospective seller or sellers of such Registrable Securities, provided, that except in the case of a shelf registration under Section 2(b) such registration statement need not be kept effective and current for longer than 120 days subsequent to the effective date of such registration statement;
(c) subject to receiving reasonable assurances of confidentiality, for a reasonable period after the filing of such registration statement, and throughout each holder period during which the Company is required to keep a registration effective, make available for inspection by the selling holders of Registrable Securities being offered, and any underwriters, and their respective counsel, such financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such inquiries as shall be reasonably necessary, in the judgment of such counsel, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act;
(Ad) promptly notify the selling holders of Registrable Securities and any underwriters and confirm such advice in writing, (i) when such registration statement or the prospectus included in such registration statement or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such registration statement or any post-effective amendment, when the same has become effective, (ii) of any comments by the Commission, by the National Association of Securities Dealers Inc. (“NASD”), and by the blue sky or securities commissioner or regulator of any state with respect thereto or any request by any such entity for amendments or supplements to such registration statement or prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of any such registration statement or the initiation or threatening of any proceedings for that purpose, (Biv) of the receipt by the Parent or its counsel 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 or (Cv) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending at any time when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each statement, prospectus, prospectus amendment or supplement or post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law amendment, or any exemption thereunder has been obtained, (ii) after receipt thereof, of document incorporated by reference in any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement foregoing, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they are made, not misleading, and, and at the request of any such sellerHolder, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of Company will prepare a supplement or amendment to such prospectus prospectus, so that, as thereafter delivered to the purchasers of such Registrable Securitiesshares, such prospectus shall will not contain an any untrue statement statements of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(e) furnish to each Holder of Registrable Securities being offered, a signed counterpart, addressed to such Holder (and, if applicable, any of its Affiliates), of (i) any opinion of counsel to the Company delivered to any underwriter and (ii) any comfort letter from the Company’s independent public accountants delivered to any underwriter;
(f) furnish to each Holder of Registrable Securities being offered, and any underwriters, prospectuses or amendments or supplements thereto, in such quantities as they may reasonably request and as soon as practicable, that update previous prospectuses or amendments or supplements thereto;
(g) use its diligent efforts to (i) register or qualify the Registrable Securities to be included in a registration statement under this Agreement under such other securities laws or blue sky laws of such jurisdictions within the United States of America as any selling Holder of such Registrable Securities or any underwriter of the securities being sold shall reasonably request, (ii) keep such registrations or qualifications in effect for so long as the registration statement remains in effect and (iii) take any and all such actions as may be reasonably necessary or advisable to enable such Holder or underwriter to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be required for any such purpose to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 5(g) or (y) consent to general service of process in any such jurisdiction;
(h) cause all such Registrable Securities to be listed or accepted for quotation on each securities exchange on which similar securities issued by the Parent are Company’s Common Stock then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAtrades;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as upon the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition sale of such any Registrable Securities (includingpursuant to such registration statement, without limitation, effecting a stock split remove all restrictive legends from all certificates or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as other instruments evidencing the underwriters managing such offering may reasonably request);Registrable Securities; and
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable diligent efforts to comply with all applicable provisions of the Securities Act, and rules and regulations of the Commission;
(n) permit any holder , and make available to the Holders, as soon as reasonably practicable, an earnings statement covering a period of Registrable Securities who, in its good faith judgment (based on at least twelve months beginning not later than the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person first day of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the ParentCompany’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated fiscal quarter next following the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the related registration statement, each amendment and supplement thereto, which shall satisfy the prospectus included therein (including the preliminary prospectusprovisions of Section 11(a) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (Securities Act and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective158 thereunder.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Distributed Energy Systems Corp), Registration Rights Agreement (Perseus Partners Vii L P)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have Whenever RSH has requested that any Registrable Securities the Public Offering Class A Shares be registered pursuant to this Agreement, the Parent shall Company will use its commercially reasonable efforts to timely effect the registration and the sale of the Public Offering Class A Shares. Pursuant to such Registrable Securities in accordance with request, the intended method of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance and file with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Exchange Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities Public Offering Class A Shares and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectiveprovided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall Company will furnish to RSH's counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) less than six months and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of Registrable Securities thereunder RSH such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus ) and such other documents as such seller he may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerPublic Offering Class A Shares;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Public Offering Class A Shares under such other securities or blue sky laws of such jurisdictions as the lead underwriter RSH or the Applicable Approving Party underwriters reasonably requests request and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller RSH to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided Public Offering Class A Shares, provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f)subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) RSH at any time when a prospectus relating thereto to the Public Offering Class A Shares is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, misleading and, at the request of any such sellerRSH, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securitiesthe Public Offering Class A Shares, such prospectus shall will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hf) cause all such Registrable Securities the Public Offering Class A Shares to be listed on each securities exchange on which similar securities issued by the Parent Nasdaq National Market, if other Company shares of the same class are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel)Nasdaq National Market, could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.or
Appears in 2 contracts
Sources: Buy/Sell/Offering Agreement (Haft Ronald S), Buy/Sell/Offering Agreement (Dart Group Corp)
Registration Procedures. In connection with the Registration to be case of each registration, qualification or compliance effected pursuant to by the Resale Shelf Registration StatementCompany or Exchangeco, and whenever as the holders of Registrable Securities have requested that any Registrable Securities be registered case may be, pursuant to this AgreementSection 1, the Parent shall use Company or Exchangeco, as the case may be, will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its commercially reasonable efforts to effect expense the registration and Company or Exchangeco, as the sale of such Registrable Securities in accordance with the intended method of disposition thereofcase may be, and pursuant thereto the Parent shall as expeditiously as reasonably possiblewill:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act A. Prepare and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statementor Canadian securities regulatory authorities, as applicable, a registration statement, and all including amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities lawssupplements, with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement to become effective, and remain effective for at least the earlier of one hundred eighty (180) days (or two (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act oryears, if such registration statement relates is pursuant to an underwritten Public OfferingSection 1.4(A) or (B)), such longer period as and the date on which the distribution described in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect registration statement has been completed;
B. Furnish to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth Holders participating in such registration statement;
(d) furnish and to each seller the underwriters of Registrable Securities thereunder the securities being registered such reasonable number of copies of such the registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus final prospectus and such other documents as such seller Holders or underwriters may reasonably request in order to facilitate the disposition public offering of such securities;
C. Use its reasonable best efforts to register and qualify the Registrable Securities owned Common Stock covered by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from Company registration with respect to such Registrable Securities statement under such other securities or blue sky laws of such United States jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions of the Registrable Securities owned by such seller (Holders, provided that the Parent Company shall not be required in connection therewith or as a condition thereto to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or (iii) subject itself to taxation in any such jurisdiction)jurisdictions;
(g) promptly notify D. In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in writing each seller usual and customary form, with the managing underwriters of such offering; each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
E. Notify each Holder of Registrable Securities (i) after it receives notice thereof, of the date and time when covered by such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus registration statement relating thereto is required to be delivered under the Securities ActLaws, of the happening of any event as a result of which the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, andmisleading in the light of the circumstances then existing;
F. Furnish, at the request of any Holder requesting registration of Registrable Securities, on the date that such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter Registrable Securities are delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed andunderwriters for sale, if such securities are being sold through underwriters, or, if such securities are not so listedbeing sold through underwriters, to be listed on a securities exchange and, without limiting the generality of date that the foregoing, to arrange for at least two market makers to register as such registration statement with respect to such Registrable Securities with FINRA;
securities becomes effective, (i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date an opinion, dated as of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions date, of the counsel representing the Company or Exchangeco, as the Applicable Approving Party or case may be, for the purposes of such registration, in form and substance as is customarily given to underwriters in underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, reasonably request in order and to expedite or facilitate the disposition Holders requesting registration of Registrable Securities; (ii) a "comfort" letter dated as of such Registrable Securities (includingdate, without limitationfrom the independent certified public accountants of the Company or Exchangeco, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the case may be, in form and substance as is customarily given by independent certified public accountants to underwriters managing in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities; and (iii) if a Canadian Prospectus is filed in the Province of Quebec, opinions of Quebec counsel and of the auditors representing the Company and Exchangeco for the purposes of such registration relating to translation into the French language of the applicable registration statement, in form and substance as is customarily given to underwriters in an underwritten public offering may and reasonably request);satisfactory to a majority in interest of Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities; and
(k) G. Upon the execution of confidentiality agreements in form and substance satisfactory to the Company, make available for inspection by of any seller of Registrable Securities, any underwriter Holder participating in any disposition pursuant to such a registration statement and any attorney, accountant or other agent professional retained by any such seller Holder or underwriterunderwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate and business documents and properties of the Parent Company and/or Exchangeco, as applicable, (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent Inspectors in connection with such registration statement;
(l) take all reasonable actions . Records that the Company determines, in good faith, to ensure be confidential and that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with it notifies the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, Inspectors are confidential shall not contain any untrue statement be disclosed by the Inspectors unless (i) the disclosure of a material fact or omit to state a material fact such Records is necessary to make the statements therein, avoid or correct a misstatement or omission in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing (ii) the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal release of such order;
(p) use its commercially reasonable efforts Records is ordered pursuant to cause such Registrable Securities covered by such registration statement to be registered with a subpoena or approved by such other governmental agencies order from a court of competent jurisdiction or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering Commission or any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveCanadian securities regulatory authority.
Appears in 2 contracts
Sources: Registration Rights Agreement (Furukawa Electric Co LTD), Registration Rights Agreement (JDS Uniphase Corp /Ca/)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any Registrable Securities under the Securities Act as provided in Section 2, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall cooperate in the sale of such Registrable Securities and shall, as expeditiously as reasonably possible:
(a) except prepare and file, in connection each case as promptly as practicable, with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the CD&R Stockholders thereof or by the Company in accordance with the Securities Act and intended method or methods of distribution thereof, make all applicable rules and regulations promulgated thereunder required filings with FINRA, and, within 60 days following receipt of if such requestRegistration Statement is not automatically effective upon filing, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission to be declared effective as soon as practicable and effectiveto remain effective as provided herein; provided, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided however, that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433 (each a “Free Writing Prospectus”)), the Parent Company shall furnish or otherwise make available to the CD&R Stockholders, their counsel selected by and the Applicable Approving Party managing underwriter(s), if any, copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents shall will be subject to the reasonable review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned requested by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commissioncounsel, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of any comment letter from the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleadingSEC, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such sellercounsel, underwriter, attorney, accountant or agent in connection with provide such registration statement;
(l) take all counsel reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent opportunity to participate in the preparation of such registration or comparable statement Registration Statement and each Prospectus included therein and such other opportunities to require conduct a reasonable investigation within the insertion therein meaning of material furnished the Securities Act, including reasonable access to the Parent in writingCompany’s books and records, which in the reasonable judgment of officers, accountants and other advisors. The Company shall not file any such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statementRegistration Statement or Prospectus, or of any order suspending amendments or preventing the use of any related prospectus supplements thereto (including Free Writing Prospectuses) with respect to a Demand Registration to which CD&R Stockholders or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agentunderwriter(s), if any, to facilitate the shall reasonably object, in writing, on a timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriterbasis, or agentunless, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counselCompany, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), filing is necessary to comply with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersapplicable law;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Resideo Technologies, Inc.), Registration Rights Agreement (Beacon Roofing Supply Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant this Section 10 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, promptly file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities and Shares and, as expeditiously as possible, use commercially reasonable its best efforts to cause such registration statement that Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(bii) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) as expeditiously as possible prepare and file with the Commission such any amendments and supplements to such registration statement the Registration Statement and the prospectus used included in connection therewith the Registration Statement as may be necessary to keep the Registration Statement effective until all Registrable Shares are sold;
(iii) as expeditiously as possible furnish to each selling Holder such registration statement effective for a period ending when all reasonable numbers of copies of the securities covered by such registration statement have been disposed of prospectus, including the preliminary prospectus, in accordance conformity with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions requirements of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statementAct, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller the selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such sellerthe selling Holder;
(eiv) during any period in which a prospectus is required as expeditiously as possible use its best efforts to be delivered register or qualify the Registrable Shares covered by the Registration Statement under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky Blue Sky laws of such jurisdictions states as the lead underwriter or the Applicable Approving Party selling Holder shall reasonably requests request, and do any and all other acts and things which that may be reasonably necessary or advisable desirable to enable such seller the selling Holder to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities Shares owned by the selling Holder in such seller (provided jurisdictions; provided, however, that the Parent Company shall not be required in connection with this Section 10(c)(iv) to qualify as a foreign corporation in any jurisdiction;
(v) furnish to each seller of Registrable Shares (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but an opinion of counsel for this Section 4(fthe Company, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), addressed to and in form and substance as is customarily given to underwriters in an underwritten public offering to each such seller, and (ii) consent if such registration includes an underwritten public offering, cause its independent public accountants who have certified the Company’s financial statements included in such Registration Statement to general service deliver to each seller of process Registrable Shares a “comfort” letter substantially identical to the comfort letter delivered by such independent public accountants to any underwriter in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)offering;
(gvi) promptly notify in writing each seller of Registrable Shares covered by such Registrable Securities (i) after it receives notice thereofRegistration Statement, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Parent and promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of a supplement to or an amendment to of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading;
(mvii) otherwise use its commercially reasonable efforts provide and cause to comply with be maintained a transfer agent and registrar for all applicable rules Registrable Shares covered by such Registration Statement from and regulations after a date not later than the effective date of the Commissionsuch Registration Statement;
(nviii) permit any holder of use its best efforts to list all Registrable Securities who, in its good faith judgment (based Shares covered by such Registration Statement on the advice of counsel), could reasonably be expected to be deemed to be an underwriter Nasdaq National Market or a controlling Person the principal securities exchange on which any securities of the Parent to participate in the preparation of same class as such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be includedRegistrable Shares are then listed;
(oix) in the event of use its best efforts to prevent the issuance of any stop order or other order suspending the effectiveness of a registration statementRegistration Statement covering Registrable Shares and, or of any if such an order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionis issued, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal thereof at the earliest possible time and to notify the Holder of the issuance of such orderorder and the resolution thereof;
(px) use provide the Holder and its commercially representatives the opportunity to conduct a reasonable efforts inquiry of the Company’s financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which the Holder may reasonably request in order to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securitiesconduct any due diligence;
(qxi) cooperate with permit counsel for the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, Holder to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain review a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially Shares and all amendments and supplements thereto a reasonable efforts period of time prior to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering thereof with the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be soldCommission; and
(wxii) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end request of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if any Holder at any time when after any Registrable Shares held by such Holder become eligible for resale pursuant to Rule 144(k) under the Parent is required Securities Act, deliver a letter to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts Company’s transfer agent irrevocably instructing the transfer agent to refile remove any securities law legend from any certificate representing such Registrable Shares which have become eligible for the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required sale pursuant to be kept effectiveRule 144(k).
Appears in 2 contracts
Sources: Warrant Agreement (Inter Parfums Inc), Warrant Agreement (Inter Parfums Inc)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02 and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Participating Sponsors, if any, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Participating Sponsors and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which either Participating Sponsor or the underwriters, if any, shall reasonably object;
(bii) as promptly as practicable file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by any Participating 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 time required by this Agreement, and comply with provisions of the 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;
(iv) notify each holder the Participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of Registrable Securities of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed, (B) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used in connection therewith as may Participating Sponsor(s) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerHolder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (Section 2.01(c) or 2.02(b), whichever is applicable, provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers 2 Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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;
(xiv) 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;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as any Participating Sponsor or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration statement 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 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;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of Section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if the Parent does not pay the filing fee covering the Registrable Securities make available upon reasonable notice at the time an Automatic Shelf reasonable times and for reasonable periods for inspection by any Participating Sponsor, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee at Sponsor(s) or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; 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 times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person; and
(wxxiii) if in the case of an Automatic Shelf Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.
(b) 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, upon delivery of any notice by the Company of the happening of any event of the kind described in Section 2.05(a)(iv)(C), (D), or (E) or Section 2.05(a)(v), such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement has been outstanding for at least three until (3i) yearssuch Holder’s receipt of the copies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(v), (ii) such Holder is advised in writing by the Company that the use of the Prospectus or Issuer Free Writing Prospectus, as the case may be, may be resumed, (iii) such Holder is advised in writing by the Company of the termination, expiration or cessation of such order or suspension referenced in Section 2.05(a)(iv)(C) or (E) or (iv) such Holder is advised in writing by the Company that the representations and warranties of the Company in such applicable underwriting agreement are true and correct in all material respects. If so directed by the Company, such Holder shall deliver to the Company (at the end Company’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.Prospectus
Appears in 2 contracts
Sources: Registration Rights Agreement (Interactive Data Holdings Corp), Registration Rights Agreement (Interactive Data Corp/Ma/)
Registration Procedures. In connection with If the Registration Company is required by the provisions of this Agreement to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Common Stock under the sale of such Registrable Securities in accordance Act, the Company shall:
(i) as expeditiously as reasonably possible file with the intended method of disposition thereofCommission a registration statement, in form and pursuant thereto substance required by the Parent shall Act, with respect to such Common Stock and use its best efforts to cause that registration statement to become effective;
(ii) as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such any amendments and supplements to such the registration statement and the prospectus used included in connection therewith the registration statement as may be necessary to keep such the registration statement effective for effective, in the case of a period ending when all firm commitment underwritten public offering, until completion of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities described therein and, in the case of any other offering, until the earlier of the sale of all Common Stock covered by such registration statement during such period in accordance with thereby or 120 days after the intended methods of disposition by the sellers thereof set forth in such registration statementeffective date thereof;
(diii) as expeditiously as reasonably possible, furnish to each seller of Registrable Securities thereunder the Purchaser, such reasonable number of copies of such registration statement, each amendment and supplement thereto, thereto (in each case including all exhibits thereto and documents incorporated by reference therein) and the prospectus included in such registration statement (statement, including each preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Act, and such other documents as such seller the Purchaser may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Common Stock owned by such sellerthe Purchaser;
(eiv) during any period in which a prospectus is required as expeditiously as reasonably possible, use its best efforts to be delivered register or qualify the Common Stock covered by the registration statement for offer and sale under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as the lead underwriter or the Applicable Approving Party Purchaser shall reasonably requests request, and do any and all other acts and things which that may be reasonably necessary or advisable desirable to enable such seller the Purchaser to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities Common Stock owned by such seller (provided 10 the Purchaser; PROVIDED, HOWEVER, that the Parent Company shall not be required to in connection with this paragraph (iiv) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f), (ii) as a foreign corporation or execute a general consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gv) after the filing of the registration statement, promptly notify in writing each seller the Purchaser of such Registrable Securities (i) after it receives notice thereofany stop order issued or, to the knowledge of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement Company, threatened to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request be issued by the Commission for and use all commercially reasonable efforts to prevent the amendment or supplementing entry of such registration statement stop order or prospectus or to remove it if entered;
(vi) in connection with an underwritten public offering, enter into a written agreement with the managing underwriter in such form and containing such provisions as are customary in the securities business for additional informationsuch an arrangement between such underwriter and companies of the Company's size and investment stature;
(vii) furnish to each underwriter, if any, and the Purchaser, a legal opinion of its counsel and a comfort letter from its independent certified public accountants, each in customary form and substance, at such time or times as such documents are customarily provided in the type of offering involved;
(iiiviii) as promptly as practicable, notify the Purchaser, at any time when a prospectus relating thereto to the sale of the Common Stock is required by law to be delivered under the Securities Actin connection with sales by an underwriter or dealer, of the happening occurrence of any event as a result of which requiring the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securitiesthe registered Common Stock, such prospectus shall will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities required to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party stated therein or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and as promptly as practicable make available to the Purchaser and to the underwriters any such supplement or prospectus;
(mix) otherwise use its commercially reasonable efforts to comply with all applicable rules whenever the Company is registering any Common Stock under the Act and regulations the Purchaser is selling securities under such registration or determines that it may be a controlling person under the Act, keep the Purchaser advised in writing of the Commission;
(n) permit any holder initiation, progress and completion of Registrable Securities whosuch registration, in its good faith judgment (based on allow the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of Purchaser and the Parent Purchaser's counsel to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agentto have access to all relevant corporate records, if anydocuments and information, to facilitate the timely preparation and delivery of certificates representing securities to be sold under include in the registration statement such information as such holder may reasonably request and enable take all such securities to be in other action as such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders holder may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(tx) provide a legal opinion as of the Parent’s outside counsel, dated the effective date of such any registration statement relating thereto, cause all such Common Stock to be
(and, if such registration includes an underwritten Public Offering, dated xi) as of the effective date of the closing under the underwriting agreement)any registration statement relating thereto, with respect provide a transfer agent and registrar for all such Common Stock. The Purchaser shall furnish to the registration statement, each amendment Company such information regarding the Purchaser and supplement thereto, the prospectus included therein (including distribution proposed by the preliminary prospectus) Purchaser as the Company may reasonably request in writing and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion as shall be addressed required in connection with the registration, qualification or compliance referred to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivethis Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Warner Ty), Securities Purchase Agreement (Cyrk Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Corporation is required to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any Registrable Securities under the Securities Act as provided in Sections 3, 4 or 5, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Corporation shall cooperate in good faith in the sale of the securities and shall, as expeditiously as reasonably possible:
(a) except in connection prepare and file with the SEC a Piggyback Registration, prepare Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt intended method or methods of such request, file with the Commission distribution thereof (1) in the case such request requires including a subsequent Resale Shelf Registration Statement, a registration statementdistribution to, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities lawsresale by, with respect to such the members or partners of a holder of Registrable Securities (an “In-Kind Distribution”)), and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effectiveeffective and to remain effective as provided herein; provided, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectivehowever, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Parent Corporation shall furnish or otherwise make available to the Stockholders that hold Registrable Securities covered by such Registration Statement or Prospectus, their counsel selected by and the Applicable Approving Party managing underwriters, if any, copies of all such documents proposed to be filed, which documents shall will be subject to the reasonable review and comment of such holders and counsel, and such other documents reasonably requested by such holders or counsel, including any comment letters or other 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 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 fee writing prospectus related thereto, with respect to a Demand Registration to which the holders of a majority of the Registrable Securities held by the Stockholders covered by such Registration Statement or Prospectus, their counsel, or the managing underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Corporation, such filing is necessary to comply with applicable law;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith each Registration Statement as may be necessary to keep such registration statement Registration Statement continuously effective for a during the period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 during such period in accordance Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities 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 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, any pre-effective amendment thereto, a Prospectus or any Prospectus supplement or post-effective amendment has been filed with the SEC, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the sellers thereof set forth 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, or could reasonably be expected with the passage of time to 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 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 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) furnish use its reasonable best efforts to each seller obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting at the earliest date reasonably practicable of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities thereunder for sale in any jurisdiction in which such number qualification or exemption has been requested pursuant to Section 7(h) below;
(e) if requested by the managing underwriters, if any, or the holders of copies 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 managing underwriters, each amendment and supplement theretoif any, the prospectus included in or such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Registrable Securities owned by Corporation has received such seller;
(e) during any period in which a prospectus is request; provided, however, that the Corporation shall not be required to be delivered take any actions under this Section 7(e) that are not, in the Securities Actopinion of counsel for the Corporation, promptly file all documents required to be filed in compliance with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actapplicable law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, as many 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 in writing by such holder, counsel or underwriter), and any free writing prospectus utilized in connection therewith, as such Persons may reasonable request; provided that the Corporation may furnish or make available any such 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 the Prospectus or Prospectuses (including each form of preliminary or final Prospectus) and each amendment or supplement thereto, and each free writing prospectus utilized in connection therewith, as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 7, hereby consents to the use of such Prospectus and each such amendment or supplement thereto, and each such free writing prospectus, by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register, register or qualify or secure an 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 with respect to or qualification) of such Registrable Securities for offer and sale under such other the securities or “blue sky sky” laws of such jurisdictions within the United States as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts and things which action that may be reasonably necessary or advisable to enable such seller holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities owned by such seller (provided jurisdiction; provided, however, that the Parent shall Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this Section 4(f), then so qualified or (ii) consent take any action that would subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gi) promptly notify 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 writing book-entry form (not being subject to any legends) representing Registrable Securities to be sold after receiving written representations from each seller 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 (i2) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement Business Days prior to any prospectus relating sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by having to issue the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationsecurities, and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof (iii) at any time when and, in the case of Registrable Securities registered on a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, andShelf Registration Statement, at the request of any such sellerholder, prepare and deliver certificates representing such Registrable Securities not bearing any restrictive legends, if applicable, and deliver or cause to be delivered an opinion or instructions to the Parent transfer agent in order to allow such Registrable Securities to be sold from time to time);
(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 the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 7(c)(vi), promptly shall prepare, prepare and file with the Commission and furnish to each such seller a reasonable number of copies of SEC a supplement or post-effective amendment to such prospectus 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 promptly delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall Prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) otherwise use its commercially 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 and, in the case of any secondary equity offering in connection therewith, provide and enter into any reasonable efforts to comply agreements with all applicable rules and regulations of a custodian for the CommissionRegistrable Securities;
(n) permit any holder (i) use its reasonable best efforts to cause all shares of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected covered by such Registration Statement to be deemed to be an underwriter or listed on a controlling Person national securities exchange if shares of the Parent particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to participate in the preparation effectiveness of such registration or comparable statement Registration Statement and (ii) comply (and continue to require comply) with the insertion therein requirements of material furnished any self-regulatory organization applicable to the Parent in writingCorporation, which in the reasonable judgment of such holder and its counsel should be includedincluding, without limitation, all corporate governance requirements;
(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 event holders of a majority of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered held by such registration statement the Stockholders that are being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to be registered with expedite or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate 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, (qi) cooperate with make such representations and warranties to the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement)any, with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters business of the type customarily covered by legal opinions of such natureCorporation and its Subsidiaries, which opinion shall be addressed to and the underwriters;
(u) Registration Statement, Prospectus and documents, if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securitiesany, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time incorporated or times as the Registrable Securities are deemed to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) yearsincorporated by reference therein, at the end of the third yearin each case, refile a new Automatic Shelf Registration Statement covering the Registrable Securitiesin form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if at any time true, confirm the same if and when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSIrequested, (ii) use its commercially reasonable best efforts to refile furnish to the registration statement on Form S-3 selling holders of such Registrable Securities opinions of counsel to the Corporation and keep such registration statement effective updates thereof (including by filing a new Resale Shelf Registration or Shelf Registrationwhich counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if necessary) during any, and counsels to the period throughout which such registration statement is required to be kept effective.selling holders of the Registra
Appears in 2 contracts
Sources: Registration Rights Agreement (Allegro Microsystems, Inc.), Registration Rights Agreement (Allegro Microsystems Inc)
Registration Procedures. (a) In connection with the Company’s Registration to be effected pursuant obligations under Sections 2.01, 2.02, and 2.03 and subject to the Resale Shelf Registration Statement, applicable terms and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementconditions set forth therein, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall distribution thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company shall:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires before filing a subsequent Resale Shelf Registration Statement, a registration statementProspectus or any Issuer Free Writing Prospectus, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall (x) furnish to counsel selected by the Applicable Approving Party underwriters, if any, and the Institutional Investors, if applicable, copies of all such documents proposed prepared to be filed, which documents shall be subject to the review and comment of such counsel)underwriters and the Institutional Investors and their respective counsel and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto to which the Institutional Investors or the underwriters, if any, shall reasonably object;
(bii) notify each holder as promptly as practicable and in accordance with the other provisions of this Agreement, file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable;
(iii) prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement, supplements to the Prospectus and such amendments or supplements to any Issuer Free Writing Prospectus as may be (x) reasonably requested by the Institutional Investors, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Participating Holder), or (z) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the 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;
(iv) 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 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 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, Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such Registration Statement or any registration statement order by the SEC 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 that purposesuch purposes, (BD) 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 Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or and (F) of the receipt by the Company of any notification with respect to the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness suspension of each registration statement filed hereunderthe qualification of the Registrable Securities for offering or sale in any jurisdiction;
(cv) 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 any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus or any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, 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 Commission such amendments SEC, and supplements furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such registration statement Registration Statement, Prospectus or Issuer Free Writing Prospectus which shall correct such misstatement or omission or effect such compliance;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any preliminary or final Prospectus or any Issuer Free Writing Prospectus;
(vii) promptly incorporate in a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters and the prospectus used Institutional Investors (to the extent the Institutional Investors are participating in connection therewith as may such Registration) agree should be necessary included therein relating to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act 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 disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth matters to be incorporated in such registration statementProspectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(dviii) furnish to each seller Participating Holder and each underwriter, if any, without charge, as many conformed copies as such Participating Holder or underwriter may reasonably request of Registrable Securities thereunder such number of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement applicable Prospectus (including each preliminary prospectusProspectus), each Free-any Issuer Free Writing Prospectus and any amendment or supplement thereto as such Participating Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities thereby) and such other documents as such seller Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerParticipating Holder or underwriter;
(ex) during any period in on or prior to the date on which a prospectus the applicable Registration Statement is required declared effective, use its reasonable best efforts to be delivered under the Securities Actregister or qualify, promptly file all documents required to be filed and cooperate with the CommissionParticipating Holders, including pursuant to Sections 13(a)the managing underwriter or underwriters, 13(c)if any, 14 and their respective counsel, in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as the lead any Participating Holder or managing underwriter or the Applicable Approving Party underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller to consummate the disposition registration or qualification in effect for such jurisdictions of the Registrable Securities owned period as required by such seller (provided Section 2.02(b), provided, that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gxi) promptly notify in writing each seller cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of such certificates representing Registrable Securities (i) after it receives notice thereof, of the date to be sold and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to not bearing any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrestrictive legends, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all enable such Registrable Securities to be listed on each securities exchange on which similar securities issued by in such denominations and registered in such names as the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for managing underwriters may request at least two market makers (2) Business Days prior to register as such with respect to such any sale of Registrable Securities with FINRAto the underwriters;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pxii) use its commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(qxiii) cooperate with not later than the holders effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities covered 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 or any other required depository;
(xiv) 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;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Institutional Investors or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration statement 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 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 Participating Holders or underwriters, as the case may be, and their respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or agentunderwriters, 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;
(xviii) cooperate with each Participating Holder and each underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(sxix) if such registration includes an underwritten public offering, use its commercially reasonable best efforts to obtain a cold comfort letter from comply with all applicable securities laws and make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters provisions of section 11(a) of the type customarily covered by cold comfort letters as Securities Act and the underwriters in such registration reasonably requestrules and regulations promulgated thereunder;
(txx) provide and cause to be maintained a legal opinion of transfer agent and registrar for all Registrable Securities covered by the Parent’s outside counsel, dated applicable Registration Statement from and after a date not later than the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersRegistration Statement;
(uxxi) if use its reasonable best efforts to cause all Registrable Securities covered by the Parent files an Automatic Shelf applicable Registration Statement covering to be listed on each securities exchange on which any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (of the Company Shares are then listed or quoted and not become an ineligible issuer (as defined in Rule 405)) during on each inter-dealer quotation system on which any of the period during which such Automatic Shelf Registration Statement is required to remain effectiveCompany Shares are then quoted;
(vxxii) if make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Institutional Investors, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement is filedand by any attorney, pay accountant or other agent retained by such fee at Institutional Investors or any such time underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; provided, that any such Person gaining access to information regarding the Company pursuant to this Section 2.05(a)(xii) shall agree to hold in strict confidence and shall not make any disclosure or times as use any information regarding the Registrable Securities are Company that the Company determines in good faith to be soldconfidential, 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 such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
(xxiii) in the case of an Underwritten Offering, 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 such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(wxxiv) if an Automatic Shelf otherwise comply in all material respects with all applicable rules and regulations of the SEC in connection with any Registration Statement has been outstanding for at least three and the disposition of all Registrable Securities covered by such Registration Statement.
(3b) yearsThe 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 Participating 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 cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Participating Holder agrees that, at upon delivery of any notice by the end Company of the third yearhappening of any event of the kind described in Section 2.05(a)(iv)(C), refile a new Automatic Shelf (D), or (E) or Section 2.05(a)(v), such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement covering until (i) such Participating Holder’s receipt of the Registrable Securitiescopies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 2.05(a)(v), and(ii) such Participating Holder is advised in writing by the Company that the use of the Prospectus or Issuer Free Writing Prospectus, if at any time when as the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.case may
Appears in 2 contracts
Sources: Registration Rights Agreement (Certara, Inc.), Registration Rights Agreement (Certara, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Section 2 to effect the registration of Registrable Securities, the Company shall:
(a) promptly prepare and file with the sale Commission a registration statement with respect to such Registrable Securities on any form that may be utilized by the Company and that shall permit the disposition of such the Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially its reasonable diligent efforts to cause such registration statement to become effectiveeffective as promptly as practicable and remain effective thereafter as provided herein, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before prior to filing a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the Parent shall initial filing of any registration statement, the Company will furnish to each of the Stockholders whose Registrable Securities are covered by such registration statement, their counsel selected by and the Applicable Approving Party underwriters copies of all such documents proposed to be filed, which filed sufficiently in advance of filing to provide them with a reasonable opportunity to review such documents shall be subject to the review and comment of such counsel)thereon;
(b) notify prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and current and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement, including such amendments (including post-effective amendments) and supplements as may be necessary to reflect the intended method of disposition by the prospective seller or sellers of such Registrable Securities, provided that such registration statement need not be kept effective and current for longer than 120 days subsequent to the effective date of such registration statement;
(c) provide customary indemnity and contribution arrangements to any qualified independent underwriter or qualified independent pricer as defined in Schedule E of the Bylaws of the National Association of Securities Dealers, Inc. (a "Qualified Independent Underwriter/Pricer"), if requested by such Qualified Independent Underwriter/Pricer, on such reasonable terms as such Qualified Independent Underwriter/Pricer customarily requires;
(d) subject to receiving reasonable assurances of confidentiality, for a reasonable period after the filing of such registration statement, and throughout each holder period during which the Company is required to keep a registration effective, make available for inspection by the selling holders of Registrable Securities being offered, and any underwriters, and their respective counsel, such financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such inquiries as shall be reasonably necessary, in the judgment of such counsel, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act;
(Ae) promptly notify the selling holders of Registrable Securities and any underwriters and confirm such advice in writing, (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 such registration statement or any post-effective amendment, when the same has become effective, (ii) of any comments by the Commission, by the National Association of Securities Dealers Inc. ("NASD"), and by the blue sky or securities commissioner or regulator of any state with respect thereto or any request by any such entity for amendments or supplements to such registration statement or prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of any such registration statement or the initiation or threatening of any proceedings for that purpose, (Biv) if at any time the representations and warranties of the Company set forth in the underwriting agreement with respect to such registration statement cease to be true and correct in all material respects, (v) of the receipt by the Parent or its counsel 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 or (Cvi) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending at any time when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each statement, prospectus, prospectus amendment or supplement or post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law amendment, or any exemption thereunder has been obtained, (ii) after receipt thereof, of document incorporated by reference in any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement foregoing, contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities required to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party stated therein or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were are made, not misleading;
(mf) furnish to each selling holder of Registrable Securities being offered, and any underwriters, prospectuses or amendments or supplements thereto, in such quantities as they may reasonably request and as soon as practicable, that update previous prospectuses or amendments or supplements thereto;
(g) permit selling holders of Registrable Securities to rely on any representations and warranties made to any underwriter of the Company or any opinion of counsel or "cold comfort" letter delivered to any such underwriter, and indemnify each such holder to the same extent that it indemnifies any such underwriter;
(h) use reasonable diligent efforts to (i) register or qualify the Registrable Securities to be included in a registration statement hereunder under such other securities laws or blue sky laws of such jurisdictions within the United States of America as any selling holder of such Registrable Securities or any underwriter of the securities being sold shall reasonably request, (ii) keep such registrations or qualifications in effect for so long as the registration statement remains in effect and (iii) take any and all such actions as may be reasonably necessary or advisable to enable such holder or underwriter to consummate the disposition in such jurisdictions of such Registrable Securities owned by such holder; provided, however, that the Company shall not be required for any such purpose to (x) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 2.06(h), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;
(i) cause all such Registrable Securities to be listed or accepted for quotation on each securities exchange or automated quotation system on which the Company's Common Stock then trades; and
(j) otherwise use its commercially reasonable diligent efforts to comply with all applicable provisions of the Securities Act, and rules and regulations of the Commission;
(n, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of at least twelve months which shall satisfy the provisions of Section 11(a) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement Securities Act and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective158 thereunder.
Appears in 2 contracts
Sources: Stock and Note Purchase Agreement (Converse Inc), Investors Rights Agreement (Converse Inc)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4, 5 or 6 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case such request requires a subsequent Resale Shelf Registration Statementof an underwritten public offering pursuant to Section 4, a registration statement, and all amendments and supplements thereto and related prospectuses shall be on Form S-1 or other form of general applicability satisfactory to the managing underwriter selected as may be necessary to comply with applicable securities laws, therein provided) with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement paragraph (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealera) above and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers’ intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its reasonable best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or “blue sky sky” laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request, provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction jurisdiction;
(e) use its reasonable best efforts to list the Restricted Stock covered by such registration statement with any securities exchange or trading system and each securities exchange and trading system, if any, on which the Common Stock of the Company is then listed, or if the Restricted Stock is not listed, to list the Restricted Stock on the New York Stock Exchange or Nasdaq, or other securities exchange or trading system acceptable to the Investors;
(iiif) subject itself to taxation in any provide a transfer agent and registrar for all such jurisdiction)Restricted Stock, not later than the effective date of such registration statement;
(g) promptly immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, misleading in light of the circumstances then existing;
(h) if the offering is underwritten and at the request of any seller of Restricted Stock, use its reasonable best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Parent promptly shall prepare, file with the Commission Securities Act and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered that (A) to the purchasers best knowledge of such Registrable Securitiescounsel, such no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus shall and each amendment or supplement thereof do not contain an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein made, in the light of the circumstances under which they were made, not misleading;
misleading and comply as to form in all material respects with the requirements of the Securities Act (hexcept that such counsel need not express any opinion as to financial statements contained therein) cause all and (C) to such Registrable Securities to other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such seller or its counsel and (ii) a letter dated such date from the independent registered public accounting firm retained by the Parent Company, addressed to the underwriters and to such seller, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting an independent registered public accounting firm within the generality meaning of the foregoingSecurities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, free-writing prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRAregistration as such underwriters reasonably may request;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the ParentCompany’s officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(lj) take advise each selling holder of Restricted Stock, 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 all reasonable actions efforts to ensure that prevent the issuance of any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act stop order or to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingobtain its withdrawal if such stop order should be issued;
(mk) otherwise use its commercially reasonable efforts cooperate with the selling holders of Restricted Stock and the managing underwriters, if any, to comply with all applicable rules facilitate the timely preparation and regulations delivery of certificates representing Restricted Stock to be sold, such certificates to be in such denominations and registered in such names as such holders or the Commission;managing underwriters may request at least two (2) business days prior to any sale of Restricted Stock; and
(nl) permit any holder of Registrable Securities whoRestricted Stock which holder, in its the sole and exclusive judgment, exercised in good faith judgment (based on the advice faith, of counsel)such holder, could reasonably be expected to might be deemed to be an underwriter or a controlling Person person of the Parent Company, to participate in good faith in the preparation of such registration or comparable statement and to require the insertion therein of material material, furnished to the Parent Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o, subject to review by the Company and its counsel after consultation with such holder. For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the event distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the issuance sale of any stop order suspending all Restricted Stock covered thereby and 120 days after the effectiveness of a effective date thereof. In connection with each registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionhereunder, the Parent sellers of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as reasonably shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4, 5 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;
(s) if such registration includes 6 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the ParentCompany’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Mevion Medical Systems, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 2 hereof to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such any Registrable Securities in accordance with under the intended method of disposition thereofSecurities Act, and pursuant thereto the Parent shall Company will, as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities securities and use commercially its reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) effective in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)expeditious manner;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement continuously effective for a period ending when all of during the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period Registration Statement in accordance with the intended methods method of disposition by the sellers thereof set forth in such registration statementRegistration Statement for such period;
(dc) furnish to each seller of Registrable Securities thereunder and to each underwriter such number of copies of such registration statement, each amendment the Registration Statement and supplement thereto, the prospectus included in such registration statement therein (including each preliminary prospectus), each Free-Writing Prospectus and such other documents ) as such seller persons reasonably may reasonably request in order to facilitate the intended disposition of the Registrable Securities owned covered by such sellerRegistration Statement;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable efforts (i) to register, register or qualify or secure an exemption from registration with respect to such the Registrable Securities covered by such Registration Statement under such other the securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or sellers of Registrable Securities or, in the Applicable Approving Party case of an underwritten public offering, the managing underwriter, reasonably requests shall request, (ii) to prepare and do any file in those jurisdictions such amendments (including post-effective amendments) and all supplements, and take such other acts and things which actions, as may be reasonably necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by in such seller (provided jurisdictions, provided, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtainedsuch Registration Statement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains an Registration Statement, as then in effect, includes any untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, misleading in light of the circumstances under which they were made, not misleadingthen existing and promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;
(mg) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder promptly notify each seller of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance by the Commission of any stop order suspending the effectiveness of a registration statement, the Registration Statement or the initiation of any order suspending or preventing proceedings for that purpose and make every reasonable effort to prevent the use issuance of any related prospectus or suspending the qualification of stop order and, if any Common Stock included in such registration statement for sale in any jurisdictionstop order is issued, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such orderlifting thereof at the earliest possible time;
(ph) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the, manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(i) if the offering is an underwritten offering, at the request of any seller of Registrable Securities, use its commercially reasonable efforts to cause furnish to such seller on the date that Registrable Securities covered are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) to the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to such registration statement to be registered with or approved by as such other governmental agencies or authorities as underwriters reasonably may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securitiesrequest;
(qj) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing securities the Registrable Securities to be sold under pursuant to the registration statement Registration Statement and to enable such securities certificates to be in such denominations and registered in such names as the managing underwriter, Investor or agent, if any, or such holders any underwriters may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(wk) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at take all other reasonable actions necessary to expedite and facilitate the end registration of the third year, refile a new Automatic Shelf Registrable Securities pursuant to the Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Agfeed Industries, Inc)
Registration Procedures. (a) In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders event that a Holder requests that its or any of Registrable Securities have requested that any its Stockholder Group’s Registrable Securities be registered pursuant to this AgreementArticle 2, the Parent shall Company will use its commercially reasonable best efforts to effect the registration and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall thereof as expeditiously as reasonably possiblepracticable, and in connection therewith the Company will:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, Applicable Regulator a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities and use commercially its reasonable best efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission as soon as practicable thereafter; and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party Selling Shareholders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, which including documents incorporated by reference in the Prospectus and, if requested by the Selling Shareholders, the Selling Shareholders (and the underwriter(s), if any) shall be subject have a reasonable opportunity to the review and comment of such counsel)thereon;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission Applicable Regulator such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary required to keep such registration statement Registration Statement effective for a period ending when all of not less than 120 days, or such shorter period as is necessary to complete the distribution of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Applicable Securities Act Law with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof Selling Shareholders set forth in such registration statement;
(diii) furnish to each seller of Registrable Securities thereunder the Selling Shareholders such number of copies of such registration statementRegistration Statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectus), each Free-Writing Prospectus ) and such other documents as such seller any underwriter(s) or Selling Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerSecurities;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fiv) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter any underwriter(s) or the Applicable Approving Party Selling Shareholder reasonably requests and do any and all other acts and things which that may be reasonably necessary or advisable to enable such seller any Selling Shareholders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (Securities; provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required subject it to qualify but for this Section 4(f), (ii) consent to taxation or general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not then so subject;
(gv) promptly notify in writing each seller the case of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedan underwritten offering, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(jA) enter into and perform such customary agreements (including underwriting agreements in customary form) as are customary in an underwritten offering and all of the representations and warranties by, and the other agreements on the part of, the Company in the underwriting agreement and other agreements to and for the benefit of such underwriters, shall also be made for the benefit of the Selling Shareholders for the limited purpose of its participation in such offering, (B) take all such other actions as the Applicable Approving Party or the underwriters, if any, underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination using best efforts to cause senior management and other Company personnel to cooperate with the Selling Shareholders and the underwriter(s) in connection with performing due diligence) and (C) use its reasonable best efforts to cause its counsel to issue opinions of shares counsel in form, substance and preparing for scope as are customary in primary underwritten offerings, addressed and participating in such number of “road shows”, investor presentations and marketing events as delivered to the underwriters managing such offering may reasonably requestunderwriter(s);
(kvi) use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which the equity securities of the Company are then listed, if any;
(vii) provide a transfer agent and registrar for all Registrable Securities not later than the effective date of such Registration Statement;
(viii) if requested, use its reasonable best efforts to cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of the Registrable Securities pursuant thereto), letters from the Company’s independent registered public accountants addressed to each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act (and the applicable rules and regulations adopted by the SEC thereunder) or other Applicable Securities Laws, rule or regulation, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings; and
(ix) promptly notify the Selling Shareholders and the underwriter or underwriters, of the following events, if any:
(A) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(B) of any written request by the Applicable Regulator for amendments or supplements to the Registration Statement or Prospectus;
(C) of the notification to the Company by the Applicable Regulator of its initiation of any proceeding with respect to the issuance by the Applicable Regulator of any stop order suspending the effectiveness of the Registration Statement;
(D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the Applicable Securities Laws of any jurisdiction; and
(E) of the happening of any event that requires the making of any changes in any Registration Statement or the Prospectus included therein in order that the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make available for inspection by the statements therein not misleading (at the request of any seller Selling Shareholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading;).
(mb) otherwise use its commercially reasonable efforts Each Holder agrees that, upon receipt of any notice from the Company pursuant to comply with all applicable rules and regulations Section 2.5(a)(ix)(B) through (E), such Holder will discontinue disposition of the Commission;
(n) permit any holder of Registrable Securities who, until such Holder’s receipt of copies of a supplemental or amended Prospectus or until advised in its good faith judgment writing (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of “Advice”) by the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder Company and its outside legal counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing that the use of the applicable Prospectus may be resumed. In the event the Company shall give any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdictionnotice, the Parent period during which the applicable Registration Statement is required to be maintained effective shall use its commercially reasonable efforts promptly to obtain be extended by the withdrawal number of days during the period from and including the date of the giving of such order;
(p) use its commercially reasonable efforts notice to cause such and including the date when each seller of Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable Registration Statement either receives the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters copies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time supplemented or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration amended Prospectus or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivereceives Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Avianca Holdings S.A.)
Registration Procedures. In connection with If and when the Registration Company is required to be effected pursuant to effect any registration under the Resale Shelf Registration StatementSecurities Act as provided in Sections 2(a), and whenever the holders 3(a), 4 or 6 of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case requisite Registration Statement to effect such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use commercially its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)limitations contained herein;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period ending when all and to comply with the provisions of the securities Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such registration statement Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods method of distribution by the sellers thereof disposition set forth in such registration statement Registration Statement, subject to the limitations contained herein;
(but not in c) (i) before filing a Registration Statement or Prospectus or any event before amendments or supplements thereto, at the expiration Company’s expense, furnish to the Holders whose securities are covered by the Registration Statement, upon request, copies of any longer period required under the Securities Act orall such documents, if other than documents that are incorporated by reference into such registration statement relates to an underwritten Public OfferingRegistration Statement or Prospectus, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law proposed to be delivered filed and such other documents reasonably requested by such Holders (which may be furnished by email), and afford Counsel to the Holders a reasonable opportunity to review and comment on such documents; and (ii) in connection with sale the preparation and filing of Registrable Securities by an underwriter or dealereach such Registration Statement pursuant to this Agreement, (A) upon reasonable advance notice to the Company, give each of the foregoing such reasonable access to all pertinent financial and comply with other records, corporate documents and properties of the provisions Company as shall be necessary, in the reasonable opinion of Counsel to the Holders and such underwriters, to conduct a reasonable due diligence investigation for purposes of the Securities Act and Exchange Act, and (B) upon reasonable advance notice to the Company and during normal business hours, provide such reasonable opportunities to discuss the business of the Company with its officers, directors, employees and the independent public accountants who have certified its financial statements as shall be necessary, in the reasonable opinion of Counsel to the Holders and such underwriters, to conduct a reasonable due diligence investigation for purposes of the Securities Act and the Exchange Act; provided that any Holder, underwriter, Counsel to the Holders or representative of any Holder or underwriter requesting or receiving such information or access shall agree to be bound by reasonable confidentiality agreements and procedures with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementthereto;
(d) notify each selling Holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;
(e) with respect to any offering of Registrable Securities, furnish to each seller selling Holder of Registrable Securities thereunder Securities, and the managing underwriters for such Underwritten Offering, if any, without charge, upon request, such number of copies of such registration statementthe applicable Registration Statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), each Free-Writing Prospectus all exhibits and other documents filed therewith and such other documents as such seller or such managing underwriters may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during , and upon request, a copy of any period in which a prospectus is required and all transmittal letters or other correspondence to be delivered under or received from, the Securities Act, promptly file all documents required Commission or any other governmental authority relating to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actsuch offer;
(f) use its commercially reasonable efforts to register, (i) register or qualify or secure an exemption from registration with respect to such all Registrable Securities covered by such Registration Statement under such other securities or blue sky “Blue Sky” laws of such states or other jurisdictions of the United States of America as the lead underwriter Holders covered by such Registration Statement shall reasonably request in writing, (ii) keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such Registration Statement remains in effect and do (iii) take any and all other acts and things which action that may be reasonably necessary or reasonably advisable to enable such seller Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such seller (provided Holders, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f)subsection (f) be obligated to be so qualified, (ii) to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify cause all Registrable Securities included in writing each seller such Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as necessary upon the opinion of counsel to the Company or Counsel to the Holders of Registrable Securities included in such Registration Statement to enable such Holder or Holders thereof to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(h) with respect to any Underwritten Offering, obtain and, if obtained, furnish to each Holder that is named as an underwriter in such Underwritten Offering and each other underwriter thereof, a signed
(A) opinion of outside counsel for the Company (including a customary 10b-5 statement), dated the date of the closing under the underwriting agreement and addressed to the underwriters, reasonably satisfactory (based on the customary form and substance of opinions of issuers’ counsel customarily given in such an offering) in form and substance to such underwriters, and
(B) “comfort” letter, dated the date of the underwriting agreement and another dated the date of the closing under the underwriting agreement and addressed to the underwriters and signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of “comfort” letters of issuers’ independent public accountant customarily given in such an offering) in form and substance to such underwriters, in each case, covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to underwriters in such types of offerings of securities;
(i) after it receives notice thereof, notify each Holder of the date and time when Registrable Securities included in such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Registration Statement at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus Prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleadingmisleading and for which the Company chooses to suspend the use of the Registration Statement and Prospectus in accordance with the terms of this Agreement, and, at the written request of any such sellerHolder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall not contain an untrue statement of a material fact Prospectus, as supplemented or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectusamended, shall not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(mj) notify the Holders of Registrable Securities included in such Registration Statement promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(k) advise the Holders of Registrable Securities included in such Registration Statement promptly after the Company receives notice or obtains knowledge of any order suspending the effectiveness of a registration statement relating to the Registrable Securities at the earliest practicable moment and promptly use its reasonable best efforts to obtain the withdrawal;
(l) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the CommissionCommission and any other governmental agency or authority having jurisdiction over the offering of Registrable Securities, and make available to its unitholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first (1st) full calendar month after the Effective Date of such Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder and which requirement will be deemed satisfied if the Company timely files complete and accurate information on Form 10-Q and 10-K and Current Reports on Form 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(m) provide and cause to be maintained a transfer agent and registrar for the Registrable Securities included in a Registration Statement no later than the Effective Date thereof;
(n) permit any holder enter into such agreements (including an underwriting agreement in customary form) and take such other actions as the Holders beneficially owning a majority of the Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale a Registration Statement or the underwriters, if any, shall reasonably request in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly order to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with expedite or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable Securities, including customary indemnification; and provide reasonable cooperation, including causing at least one (1) executive officer and a senior financial officer to use their reasonable best efforts to attend and participate in “road shows” and other information meetings organized by the underwriters, if any, as customary and reasonably requested; provided, however, that the Company shall have no obligation to participate in more than two (2) “road shows” in any twelve (12)-month period and such participation shall not unreasonably interfere with the business operations of the Company;
(qo) if requested by the managing underwriter(s) or the Holders beneficially owning a majority of the Registrable Securities being sold in connection with an Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information relating to the plan of distribution for such Registrable Securities provided to the Company in writing by the managing underwriters and the Holders of a majority of the Registrable Securities being sold and that is required to be included therein relating to the plan of distribution with respect to such Registrable Securities, including without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering, and make any required filings with respect to such information relating to the plan of distribution as soon as practicable after notified of the information;
(p) cooperate with the holders Holders of Registrable Securities covered by the registration statement included in a Registration Statement and the managing underwriter or agentunderwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under the registration statement and not bearing any restrictive legends, and enable such securities Registrable Securities to be in such denominations amounts and registered in such names as the managing underwriterunderwriters, or agentor, if anynone, or such holders the Holders beneficially owning a majority of the Registrable Securities being offered for sale, may request;
reasonably request at least three (r3) cooperate with each holder Business Days prior to any sale of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(uq) if the Parent files an Automatic Shelf cause all Registrable Securities included in a Registration Statement covering any Registrable Securitiesto be listed on a national securities exchange on which similar securities issued by the Company are then listed, if at all, and if no similar securities issued by the Company are listed on a national securities exchange, to use its commercially reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering list the Registrable Securities at the time an Automatic Shelf included in a Registration Statement is filed, pay such fee at such time or times as on a national securities exchange designated by the Registrable Securities are to be soldMajority Holders; and
(wr) if an Automatic Shelf otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Securities contemplated hereby. In addition, at least ten (10) Trading Days prior to the first anticipated filing date of a Registration Statement has been outstanding for at least three (3) yearsany registration under this Agreement, at the end Company will notify each Holder of the third yearinformation the Company requires from that Holder, refile including any update to or confirmation of the information contained in the Selling Holder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in any event, within five (5) Trading Days prior to the applicable anticipated filing date; and provided further that any Registrable Securities of a new Automatic Shelf Holder shall not be included in meeting any demand threshold set forth in this Agreement if it has not promptly provided a Selling Holder Questionnaire, or updates thereto, as reasonably requested by the Company. Each Holder further agrees that it shall not be entitled to be named as a selling security-holder in the Registration Statement covering or use the Prospectus for offers and resales of Registrable SecuritiesSecurities at any time, unless such Holder has returned to the Company a completed and signed Selling Holder Questionnaire and a response to any requests for further information as described in the previous sentence and, if at an Underwritten Offering, entered into an underwriting agreement with the underwriters and a lock-up letter in accordance with Section 4(b) and Section 10, as applicable. If a Holder of Registrable Securities returns a Selling Holder Questionnaire or a request for further information, in either case, after its respective deadline, the Company shall be permitted to exclude such Holder from being a selling security holder in the Registration Statement or any time when pre-effective or post-effective amendment thereto. Each Holder acknowledges and agrees that the Parent is required information in the Selling Holder Questionnaire or request for further information as described in this Section 7 will be used by the Company in the preparation of the Registration Statement and hereby consents to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile inclusion of such information in the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Community Choice Financial Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 9(b) to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealerSection 9(c)(i) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(iii) furnish to each selling Holder and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and amendment thereto) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(div) furnish use commercially reasonable to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead Sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (shall request; provided that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of use commercially reasonable to list the date and time when Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(vi) immediately notify each selling Holder and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationstatement, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, andand each Holder hereby covenants and agrees, at upon receipt of such notification, to discontinue disposition of Restricted Stock pursuant to such registration statement until the request time of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number effectiveness of copies of an amendment thereto or a supplement or amendment to such prospectus included therein as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Stock, such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(hvii) cause if the offering is underwritten and at the request of any selling Holder, furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (1) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such selling Holder, stating that such registration statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Act (except that such Registrable Securities counsel need not express any opinion as to financial statements contained therein) and (C) to such other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such selling Holder or its counsel; and (2) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters and to such selling Holder, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingAct and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kviii) make available for inspection by any seller of Registrable Securitieseach selling Holder, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller selling Holder or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such sellerselling Holder, underwriter, attorney, accountant or agent in connection with such registration statement;
. For purposes of Section 9(c)(i) and 9(c)(ii), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby and one hundred twenty (l120) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in days after the effective date thereof. In connection with any Piggyback Registration hereunder complies each registration hereunder, the selling Holders will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws and to make the registration statement correct, accurate and complete in all material respects with respect to such selling Holders' participating in the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, offering; provided that this requirement shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be limit any disclosure obligation arising out of any selling Holder's relationship to the Company if one of such Holder's agents or affiliates is an underwriter officer, director or a controlling Person control person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writingCompany. In addition, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required underwritten registration, the selling Holders shall, if requested by the Company, execute such other underwriting related agreements, which are reasonably satisfactory to them and which shall contain such provisions as may be made customary and reasonable in order to accomplish the registration of the Restricted Stock. In connection with FINRA;
(seach registration pursuant to Section 9(b) if such registration includes covering an underwritten public offering, use its commercially reasonable efforts the Company and each selling Holder agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to the underwriters, managing underwriter in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 1 contract
Sources: Warrant Agreement (Egenera, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Agreement to effect the registration and of any of the sale of such Registrable Shares under the Securities in accordance with Act, the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act 4.1 Prepare and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities Shares and use commercially reasonable its best efforts to cause such registration statement that Registration Statement to become effective, or (2) in and remain effective until the case an effective Resale Shelf Registration Statement is on file with completion of the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)distribution;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose4.2 As expeditiously as reasonably practicable, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such any amendments and supplements to such registration statement the Registration Statement and the prospectus used included in connection therewith the Registration Statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act orRegistration Statement effective, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(d) 4.3 As expeditiously as reasonably practicable, furnish to each seller of Registrable Securities thereunder selling Investor such number reasonable numbers of copies of such registration statementthe Registration Statement, each amendment and supplement thereto, the prospectus included in such registration statement (prospectus, including each a preliminary prospectus), each Free-Writing Prospectus in conformity with the requirements of the Securities Act, and such other documents as such seller the selling Investor may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by such sellerthe selling Investor;
(e4.4 As expeditiously as reasonably practicable, use its best efforts to register or qualify the Registrable Shares covered by the Registration Statement under the securities or Blue Sky laws of such states as the selling Investors shall reasonably request, and do any and all other acts and things that may be necessary or desirable to enable the selling Investors to consummate the public sale or other disposition in such states of the Registrable Shares owned by the selling Investor; provided, however, that the Company shall not be required in connection with this Section 4.4 to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction where it is not conducting business;
4.5 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) during of such offering. Each Investor participating in such underwriting shall also enter into and perform its obligations under such an agreement;
4.6 Promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, after it shall receive notice thereof, of the time when such Registration Statement has become effective or such supplement to any period prospectus forming a part of such Registration Statement has been filed;
4.7 Promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information;
4.8 Prepare and promptly file with the Commission, and promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of such amendment or supplement to such Registration Statement or prospectus, as then in which effect, as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, promptly file all documents required any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to be filed with state any material fact necessary to make the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) statements therein not misleading in light of the Securities Actcircumstances under which they were made;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such 4.9 Promptly notify each selling Investor of Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned Shares covered by such seller (provided that the Parent 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 Section 4(f)Registration Statement, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing and each seller of such Registrable Securities (i) underwriter, if any, after it receives shall receive notice or obtain knowledge thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, issuance of any request stop order by the Commission for suspending the amendment or supplementing effectiveness of such registration statement Registration Statement or prospectus the initiation or threatening of any proceeding for additional information, that purpose and (iii) at promptly use all reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
4.10 At any time when a prospectus relating thereto Registration Statement is required to be delivered effective under the Securities Act, promptly notify each selling Investor of Registrable Shares covered by such Registration Statement, and each underwriter, if any, of the happening of any event as a result of which the prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in light of the request of any such seller, the Parent circumstances then existing. The Company shall promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall it will not 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, therein not misleading in light of the circumstances under which they were made, not misleadingthen existing;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who4.11 Furnish, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause date that such Registrable Securities covered by are delivered to the underwriters for sale, if such registration statement to be registered with or approved by such other governmental agencies or authorities securities are being sold through underwriters, (a) an opinion, dated as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with date, of the holders of Registrable Securities covered by counsel representing the registration statement and Company for the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition purposes of such Registrable Securities registration, in form and their respective counsel substance as is customarily given to underwriters in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, if any, and to each selling Investor of Registrable Shares covered by such Registration Statement and (b) a letter dated as of such date, from the independent certified public accountants of the Company, in customary form and covering substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters and to each selling Investor of Registrable Shares covered by such matters Registration Statement;
4.12 If the Company has delivered preliminary or final prospectuses to the selling Investors and after having done so the prospectus is amended to comply with the requirements of the type customarily covered by cold comfort letters as Securities Act, the underwriters in such registration reasonably request;
(t) provide a legal opinion of Company shall promptly notify the Parent’s outside counsel, dated the effective date of such registration statement (selling Investors and, if such registration includes an underwritten Public Offeringrequested, dated the date selling Investors shall immediately cease making offers of Registrable Shares and return all prospectuses to the Company. The Company shall promptly provide the selling Investors with revised prospectuses and, following receipt of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement theretorevised prospectuses, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters selling Investors shall be free to resume making offers of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be soldShares; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the 4.13 Cause all such Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required Shares to be kept effectivelisted on or included in each securities exchange or quotation system on which similar securities issued by the Company are then listed.
Appears in 1 contract
Registration Procedures. In connection with the Registration to be case of each registration or qualification effected pursuant to by the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Company pursuant to this Agreement, the Parent shall use its commercially reasonable efforts Company will keep each Holder advised in writing as to effect the initiation of each registration and qualification and as to the sale of such Registrable Securities in accordance with completion thereof. At its expense, the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany will:
(a) except in connection with Keep such registration or qualification effective and current for a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 period of 180 days following receipt of (or such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses longer period as may be necessary to accommodate the filing of amendments or supplements necessary to comply with applicable the Securities Act) or until the Holder or Holders have completed the distribution described in the registration statement relating thereto, whichever first occurs;
(b) Promptly furnish such number of prospectuses (including all amendments) and other documents incident thereto as a Holder from time to time may reasonably request;
(c) Use its reasonable best efforts to register and qualify the securities lawscovered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders or any managing underwriter for the distribution of the Registrable Securities covered by the registration statement; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdiction;
(d) Use its reasonable best efforts to cause all Registrable Securities covered by the registration statement to be listed or accepted for quotation on a national securities exchange or automated quotation system, and maintained for listing or quotation thereon;
(e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement; provided, that the Company shall use its reasonable best efforts to ensure that the Requesting Holders’ indemnity obligations pursuant to such an underwriting agreement are no more extensive than those provided in Article 7 of this Agreement. In addition, the Company shall use its reasonable best efforts to take such other actions as may be reasonably requested by the managing underwriter to expedite or facilitate the completion of the offering, including participation by a “named executive officer” of the Company (as defined in Item 402(a)(3) of Regulation S-K under the Securities Act) in any road shows or other presentations organized by the managing underwriter.
(f) Subject to receiving reasonable assurances of confidentiality, for a reasonable period after the filing of such registration statement, and throughout each period during which the Company is required to keep a registration effective, make available for inspection by the selling Holders, and any underwriters, and their respective counsel, such financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such inquiries as shall be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act;
(g) Promptly notify each Holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and
(h) Promptly notify the selling Holders and any underwriters, and confirm such advice in writing, (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 such Registrable Securities and use commercially reasonable efforts to cause such registration statement to or any post-effective amendment, when the same has become effective, (ii) of any comments by the Commission, by the National Association of Securities Dealers Inc. (“NASD”), and by the blue sky or (2) in the case an effective Resale Shelf Registration Statement is on file securities commissioner or regulator of any state with the Commission and effective, an applicable prospectus respect thereto or prospectus supplement any request by any such entity for the resale of Registrable Securities pursuant amendments or supplements to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements theretofor additional information, the Parent shall furnish to counsel selected by the Applicable Approving Party copies (iii) of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any such registration statement or the initiation or threatening of any proceedings for that purpose, (Biv) if at any time the representations and warranties of the Company cease to be true and correct in all material respects, and (v) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification of the Registrable Securities covered by the registration statement for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;.
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Parent 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 Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at At the request of any such sellerRequesting Holder, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order use its reasonable best efforts to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant furnish to such registration statement and any attorneyrequesting Holder, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from at the Parent’s independent public accountants and closing provided for in the underwriting agreement, copies of any opinion, dated such date, of the counsel representing the Company for the purposes of such registration, addressed to the underwriters, in customary form and underwriters covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, the prospectus and each amendment and or supplement thereto, proceedings under state and Federal securities laws, other matters relating to the prospectus included therein Company, the securities being registered and the offer and sale of such securities as are customarily the subject of opinions of issuer’s counsel provided to underwriters in underwritten public offerings and (including ii) use its reasonable best efforts to furnish to the preliminary prospectus) Requesting Holder letters dated each such effective date and such other documents relating thereto in customary form and covering such matters closing date, from the independent certified public accountants of the type customarily covered by legal opinions of such natureCompany, which opinion shall be addressed to the underwriters;
(u) if underwriters stating that they are independent certified public accountants within the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (meaning of the Securities Act and not become an ineligible issuer (as defined in Rule 405)) during the period during which dealing with such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times matters as the Registrable Securities are underwriters may reasonably request, and (iii) furnish to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding the Requesting Holder such information as such seller may reasonably request for at least three (3) years, at the end purpose of establishing its “due diligence” defense under Section 11 of the third yearSecurities Act, refile a new Automatic Shelf Registration Statement covering but subject to such confidentiality restrictions as the Registrable Securities, and, if at any time when the Parent is required Company may reasonably impose to re-evaluate protect its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 confidential and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveproprietary information.
Appears in 1 contract
Sources: Registration Rights Agreement (AutoTrader Group, Inc.)
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreementregistration hereunder, the Parent shall Company will use its commercially reasonable best efforts to to, as soon as practicable, effect the registration and the sale of such Registrable Securities Stock in accordance with the intended method of disposition thereof, distribution thereof and pursuant thereto the Parent shall as expeditiously as reasonably possiblewill:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities Stock and use commercially reasonable its best efforts to cause such registration statement to become effective; provided, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectivehowever, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall Company will furnish to counsel the counsel, if any, selected by the Applicable Approving Party Holder copies of all such documents proposed to be filed, which documents shall will be subject to the review and comment reasonable comments of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a such period ending when all as shall be required for the disposition pursuant to the terms of the securities covered by such registration statement have been disposed of all Registrable Stock covered thereby, and in accordance with the intended methods of distribution by the sellers thereof set forth in each such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and case comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition distribution by the sellers thereof set forth in such registration statement;
(dc) furnish to each seller of Registrable Securities thereunder Stock such reasonable 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), each Free-Writing Prospectus ) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities Stock then held, owned and being registered by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Stock under such other securities or blue sky laws of such jurisdictions within the United States as any seller reasonably requests to keep such registration or qualification in effect for as long as the lead underwriter or the Applicable Approving Party reasonably requests relevant registration statement is in effect and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities Stock then held, owned and being registered by such seller (provided that the Parent 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 Section 4(f)seller; provided, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.however,
Appears in 1 contract
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant Company is required to this Agreementeffect a Registration, the Parent shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities Company shall, except as provided in accordance with the intended method of disposition thereofSection 2.1(i), and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments SEC as promptly as practicable, but in any event not later than 45 days after receipt of an Initial Request, a Registration Statement on any form for which the Company then qualifies which counsel for the Company shall deem appropriate, subject to Section 2.1(e), and supplements to such registration statement and which form shall be available for the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all sale of the securities covered by such registration statement have been disposed of Included Securities in accordance with the intended methods of distribution by the sellers thereof set forth in thereof, and use all reasonable efforts to cause such registration statement (Registration Statement to become effective; provided that as promptly as practicable, but not in any event not later than four Business Days before filing any Registration Document with the expiration SEC, the Company will furnish to each Participating Holder, the Managing Underwriter, if any, and one counsel selected by Participating Holders owning a majority in number of the Included Securities copies of such Registration Document, which shall be subject to review by such Persons and the Company shall not file any Registration Document to which the Managing Underwriter, if any, or Participating Holders owning a majority in number of the Included Securities or such counsel of such Participating Holders shall have reasonably objected within three Business Days after receipt of such Registration Document (provided that the fore going shall not limit the right of any longer period required under Participating Holder identified in such Registration Document reasonably to object, within three Business Days after receipt of such Registration Document, to any particular information contained therein relating specifically to such Participating Holder, including any information describing the manner in which such Participating Holder acquired its Included Securities and the intended method of distribution thereof) and if the Company is unable to file any such Registration Document due to any objection as provided herein, use its best efforts to cooperate with the Managing Under writer, if any, and the Participating Holders to prepare, as promptly as reasonably practicable, a document that is satisfactory to the Company, the Managing Underwriter, if any, and the Participating Holders; provided further that if such Registration Document refers to any Participating Holder by name or otherwise as the holder of any Included Securities, then such Participating Holder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such Participating Holder, to the effect that the holding by such Participating Holder of such securities does not necessarily make such Participating Holder a "Controlling Person" of the Company within the meaning of the Securities Act orand is not to be construed as a recommendation by such Participating Holder of the investment quality of the Common Stock or the Warrants, as the case may be, covered thereby and that such holding does not imply that such Participating Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such Participating Holder by name or otherwise is not required by the Securities Act or any rules and regulations promulgated thereunder, the deletion of the reference to such Participating Holder; and the Company shall notify each Participating Holder of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the SEC such registration statement relates additional Registration Documents as may be necessary to an underwritten Public Offering, keep the Registration Statement in such Registration effective until the earlier of (i) such time as all Included Securities have been sold and (ii) 90 days from the effective date of such Registration Statement or such longer period as in the opinion of counsel for the underwriters a prospectus is may be required by law to be delivered in connection with sale of Registrable the Securities by an underwriter or dealer) Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Included Securities during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementRegistration Statement;
(c) furnish to each Participating Holder and the Managing Underwriter, if any, copies of such Registration Documents in such Registration and in such numbers as may be required by the Securities Act or as any of the foregoing may reasonably request;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file use all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable the Included Securities under such other state securities or "blue sky sky" laws of such jurisdictions as the lead underwriter any Participating Holder or the Applicable Approving Party Managing Underwriter, if any, reasonably requests and do any and all other acts and things which that may be reasonably necessary or advisable to enable such seller the Participating Holders and the Managing Underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (Included Securities; provided that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f2.4(d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of use all reasonable efforts to cause the Included Securities to be registered with or approved by such Registrable Securities (i) after it receives notice thereof, other governmental agencies or authorities as may be necessary by virtue of the date business and time when such registration statement and operations of the Company to enable each post-effective amendment thereto has become effective or a prospectus or supplement Participating Holder to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, consummate the disposition of its Included Securities;
(ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iiif) at any time when a prospectus relating thereto to the Included Securities is required to be delivered under the Securities Act, immediately notify each Participating Holder and the Managing Underwriter, if any, of the happening of any event that comes to the Company's attention if as a result of which such event the prospectus included in such registration statement Registration Statement contains an any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, at and the request of any such seller, the Parent Company will promptly shall prepare, file with the Commission prepare and furnish to each such seller a reasonable number of copies of Participating Holder and the Managing Underwriter, if any, a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Included Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall will not contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pg) use its commercially all reasonable efforts to cause such Registrable the Included Securities covered by such registration statement to be registered with listed on each securities exchange or approved by such other governmental agencies or authorities as may be necessary to enable national market system on which the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agentCommon Stock is then listed, if any, and enter into such customary agreements including a listing application and indemnification agreement in customary form, provided that the applicable listing requirements are satisfied, and to facilitate provide a transfer agent and registrar for the timely preparation and delivery Included Securities no later than the effective date of certificates representing securities to be sold under the registration statement and enable such securities to be Registration Statement in such denominations Registration;
(h) enter into such customary agreements (including an underwriting agreement in customary form) and registered take all such other actions as Participating Holders owning a majority in such names as number of the managing underwriter, Included Securities or agentthe Managing Underwriter, if any, reasonably request in order to expedite or such holders may requestfacilitate the disposition of the Included Securities, including customary indemnification;
(ri) cooperate with each holder make available for inspection by any Participating Holder, the Managing Underwriter, if any, and any attorney, accountant or other agent retained by any Participating Holder or the Managing Underwriter, if any, all financial and other records, pertinent corporate documents and properties of Registrable Securities covered the Company and its subsidiaries as shall be reasonably necessary to enable such Persons to exercise their due diligence responsibility, and cause the Company's and its subsidiaries' officers, directors and employees to supply all information and respond to all inquiries reasonably requested by the registration statement and each underwriter or agent participating in the disposition of any such Registrable Securities and their respective counsel Person in connection with any filings required to be made with FINRAthe Registration Statement in such Registration;
(sj) if such registration includes deliver an underwritten public offering, use its commercially reasonable efforts to obtain opinion of counsel for the Company and a "cold comfort comfort" letter from the Parent’s Company's independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by opinions of issuer's counsel and "cold comfort comfort" letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto matters as Participating Holders owning a majority in customary form and covering such matters number of the type customarily covered by legal opinions of such natureIncluded Securities or the Managing Underwriters, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securitiesany, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be soldreasonably request; and
(wk) if otherwise use all reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, earnings statement no later than 60 days after the end of the 12- month period commencing at the end of the third year, refile a new Automatic Shelf fiscal quarter of the Company in which the effective date of the Registration Statement covering shall have occurred (as the Registrable Securitiesterm "effective date" is defined in Rule 158(c) under the Securities Act), which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. Each Participating Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Sec tion 2.4(f), such Participating Holder will forthwith discontinue disposition of its Included Securities until such Participating Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.4(f), and, if so directed by the Company such Participating Holder will deliver to the Company (at the Company's expense) all copies (including, but not limited to, any and all drafts), other than permanent file copies, then in such Participating Holder's possession, of the prospectus covering the Included Securities current at the time when of receipt of such notice. In the Parent is required to re-evaluate its WKSI status event the Parent determines that it is not a WKSICompany shall give any such notice, use its commercially reasonable efforts to refile the registration statement on Form S-3 period mentioned in Section 2.4(b) shall be extended by the greater of (i) 90 days and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessaryii) the number of days during the period throughout which from and including the date of the giving of such registration statement is required notice pursuant to be kept effectiveSection 2.4(f) to and including the date when each Participating Holder shall have received the copies of the supplemented or amended prospectus contemplated by Section 2.4(f).
Appears in 1 contract
Sources: Equity Registration Rights Agreement (Homeland Holding Corp)
Registration Procedures. In connection with the Registration to be case of each registration, qualification or compliance effected pursuant to by the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered Company pursuant to this Agreementparagraph 1, the Parent shall use Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its commercially expense the Company will, with reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possiblepromptness:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act Prepare and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or and remain effective for at least one hundred eighty (2180) days unless the distribution described in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)has been earlier completed;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with statement.
(c) Furnish to the intended methods of disposition by the sellers thereof set forth Holders participating in such registration statement;
(d) furnish and to each seller the underwriters of Registrable Securities thereunder the securities being registered such reasonable number of copies of such the registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus final prospectus and such other documents as such seller they may reasonably request in order to facilitate the disposition public offering of the Registrable Securities owned by such seller;securities.
(ed) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file Use all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, register and qualify or secure an exemption from the securities covered by such registration with respect to such Registrable Securities statement under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may shall be reasonably necessary or advisable to enable such seller to consummate requested by the disposition in such jurisdictions of the Registrable Securities owned by such seller (Holders, provided that the Parent Company shall not be required in connection therewith or as a condition thereto to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this Section 4(f), (ii) file a general consent to general service of process in any such jurisdiction states or (iii) jurisdictions, unless the Company is already subject itself to taxation service in any such jurisdiction);.
(ge) promptly notify In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in writing each seller usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities (i) after it receives notice thereof, of the date and time when covered by such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, Act of the happening of any event as a result of which the prospectus included in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, andmisleading in the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration of Registrable Securities, on the date such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter Registrable Securities are delivered to the purchasers of such Registrable Securitiesunderwriters for sale in connection with a registration pursuant to this paragraph 1.6, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar an opinion, dated such date, of the counsel representing the Company for all such Registrable Securities not later than the effective date purposes of such registration statement;
(j) enter into registration, in form and perform such customary agreements (including underwriting agreements substance as is customarily given to underwriters in customary form) and take all such other actions as the Applicable Approving Party or an underwritten public offering, addressed to the underwriters, if any, reasonably request in order and to expedite or facilitate the disposition Holders requesting registration of such Registrable Securities and (includingii) a letter dated such date, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as from the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties independent accountants of the Parent Company, in form and substance as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and is customarily given by independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent underwriters in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form if any, and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the Holders requesting registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.
Appears in 1 contract
Sources: Stockholder Rights Agreement (Vnus Medical Technologies Inc)
Registration Procedures. In connection with If and when the Registration Company is required to be effected pursuant to effect any registration under the Resale Shelf Registration StatementSecurities Act as provided in Sections 2(a), and whenever the holders 4(a) or 5 of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Parent Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleto:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case requisite Registration Statement to effect such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)limitations contained herein;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period ending when all and to comply with the provisions of the securities Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such registration statement Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods method of distribution by the sellers thereof disposition set forth in such registration statement Registration Statement, subject to the limitations contained herein;
(but not in c) (i) before filing a Registration Statement or Prospectus or any event before amendments or supplements thereto, at the expiration Company’s expense, furnish to the Holders whose securities are covered by the Registration Statement copies of any longer period required under the Securities Act orall such documents, if other than documents that are incorporated by reference into such registration statement relates to an underwritten Public OfferingRegistration Statement or Prospectus, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law proposed to be delivered filed and such other documents reasonably requested by such Holders (which may be furnished by email), and afford Counsel to the Holders a reasonable opportunity to review and comment on such documents; and (ii) in connection with sale the preparation and filing of Registrable Securities by an underwriter or dealereach such Registration Statement pursuant to this Agreement, (A) upon reasonable advance notice to the Company, give each of the foregoing such reasonable access to all financial and comply with other records, corporate documents and properties of the provisions Company as shall be necessary, in the reasonable opinion of Counsel to the Holders and such underwriters, to conduct a reasonable due diligence investigation for purposes of the Securities Act with respect and Exchange Act, and (B) upon reasonable advance notice to the disposition Company and during normal business hours, provide such reasonable opportunities to discuss the business of all securities covered by the Company with its officers, directors, employees and the independent public accountants who have certified its financial statements as shall be necessary, in the reasonable opinion of such registration statement during counsel to such period in accordance with Holders and such underwriters, to conduct a reasonable due diligence investigation for purposes of the intended methods of disposition by Securities Act and the sellers thereof set forth in such registration statementExchange Act;
(d) notify each selling Holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;
(e) with respect to any offering of Registrable Securities, furnish to each seller selling Holder of Registrable Securities thereunder Securities, and the managing underwriters for such underwritten offering, if any, without charge, such number of copies of such registration statementthe applicable Registration Statement, each amendment and supplement thereto, the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), each Free-Writing Prospectus all exhibits and other documents filed therewith and such other documents as such seller or such managing underwriters may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during , and upon request, a copy of any period in which a prospectus is required and all transmittal letters or other correspondence to be delivered under or received from, the Securities Act, promptly file all documents required Commission or any other governmental authority relating to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Actsuch offer;
(f) use its commercially reasonable efforts to register, (i) register or qualify or secure an exemption from registration with respect to such all Registrable Securities covered by such Registration Statement under such other securities or blue sky laws of such states or other jurisdictions of the United States of America as the lead underwriter Holders covered by such Registration Statement shall reasonably request in writing, (ii) keep such registration or the Applicable Approving Party reasonably requests qualification in effect for so long as such Registration Statement remains in effect and do (iii) take any and all other acts and things which action that may be reasonably necessary or reasonably advisable to enable such seller Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned securities to be sold by such seller (provided Holders, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this Section 4(f)subsection (f) be obligated to be so qualified, (ii) to subject itself to taxation in such jurisdiction or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify cause all Registrable Securities included in writing each seller such Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as necessary upon the opinion of counsel to the Company or Counsel to the Holders of Registrable Securities included in such Registration Statement to enable such Holder or Holders thereof to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(h) with respect to any Underwritten Offering, obtain and, if obtained, furnish to each Holder that is named as an underwriter in such Underwritten Offering and each other underwriter thereof, a signed
(A) opinion of outside counsel for the Company, dated the date of the closing under the underwriting agreement and addressed to the underwriters, reasonably satisfactory (based on the customary form and substance of opinions of issuers’ counsel customarily given in such an offering) in form and substance to such underwriters, if any, and
(B) “cold comfort” letter, dated the date of the closing under the underwriting agreement and addressed to the underwriters and signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, reasonably satisfactory (based on the customary form and substance of “cold comfort” letters of issuers’ independent public accountant customarily given in such an offering) in form and substance to such Holder and such underwriters, if any, in each case, covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to underwriters in such types of offerings of securities;
(i) after it receives notice thereof, notify each Holder of the date and time when Registrable Securities included in such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) Registration Statement at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the happening of any event as a result of which which, the prospectus Prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made and for which the Company chooses to suspend the use of the Registration Statement and Prospectus in accordance with the terms of this Agreement, and, at the written request of any such sellerHolder, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller it a reasonable number of copies of a supplement to or an amendment to of such prospectus Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus Prospectus, as supplemented or amended, shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made;
(hj) notify the Holders of Registrable Securities included in such Registration Statement promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(k) advise the Holders of Registrable Securities included in such Registration Statement promptly after it shall receive notice or obtain knowledge thereof and promptly use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement relating to the Registrable Securities at the earliest practicable moment;
(l) otherwise comply with all applicable rules and regulations of the Commission and any other governmental agency or authority having jurisdiction over the offering of Registrable Securities, and make available to its stockholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first (1st) full calendar month after the Effective Date of such Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder and which requirement will be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q and 10-K and Current Reports on Form 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(m) cause all such Registrable Securities included in a Registration Statement to be listed on each a national securities exchange on which similar securities issued by the Parent Company are then listed andlisted, if not so listed, to be listed on a securities exchange and, without limiting the generality listing of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRAis then permitted under the rules of such exchange;
(in) provide and cause to be maintained a transfer agent and registrar for all such the Registrable Securities not included in a Registration Statement no later than the effective date of such registration statementEffective Date thereof;
(jo) enter into and perform such customary agreements (including an underwriting agreements agreement in customary form) and take all such other actions as the Applicable Approving Party Holders beneficially owning a majority of the Registrable Securities included in a Registration Statement or the underwriters, if any, shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities, including customary indemnification; and provide reasonable cooperation, including causing at least one (including, without limitation, effecting a stock split or a combination of shares 1) executive officer and preparing for the Company’s Chief Financial Officer and/or Chief Accounting Officer to attend and participating participate in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial ” and other recordsinformation meetings organized by the underwriters, pertinent corporate and business documents and properties of if any, as reasonably requested; provided, that the Parent as Company shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent have no obligation to participate in more than two (2) “road shows” in any twelve (12)-month period and such participation shall not unreasonably interfere with the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event business operations of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such orderCompany;
(p) use its commercially reasonable efforts to cause such if requested by the managing underwriter(s) or the Holders beneficially owning a majority of the Registrable Securities covered being sold in connection with an Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information relating to the plan of distribution for such shares of Registrable Securities provided to the Company in writing by such registration statement the managing underwriters and the Holders of a majority of the Registrable Securities being sold and that is required to be registered included therein relating to the plan of distribution with or approved by such other governmental agencies or authorities as may be necessary respect to enable the sellers thereof to consummate the disposition of such Registrable Securities, including without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering, and make any required filings with respect to such information relating to the plan of distribution as soon as practicable after notified of the information;
(q) cooperate with the holders Holders of Registrable Securities covered by the registration statement included in a Registration Statement and the managing underwriter or agentunderwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold under the registration statement and not bearing any restrictive legends, and enable such securities Registrable Securities to be in such denominations share amounts and registered in such names as the managing underwriterunderwriters, or agentor, if anynone, or such holders the Holders beneficially owning a majority of the Registrable Securities being offered for sale, may request;reasonably request at least three (3) Business Days prior to any sale of Registrable Securities to the underwriters; and
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, otherwise use its commercially reasonable efforts to obtain a cold comfort letter from take all other steps necessary to effect the Parent’s independent public accountants and addressed registration of such Registrable Securities contemplated hereby. In addition, at least ten (10) Trading Days prior to the underwritersfirst anticipated filing date of a Registration Statement for any registration under this Agreement, the Company will notify each Holder of the information the Company requires from that Holder, including any update to or confirmation of the information contained in the Selling Stockholder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in customary form any event, within five (5) Trading Days prior to the applicable anticipated filing date. Each Holder further agrees that it shall not be entitled to be named as a selling securityholder in the Registration Statement or use the Prospectus for offers and covering resales of Registrable Securities at any time, unless such matters of Holder has returned to the type customarily covered by cold comfort letters Company a completed and signed Selling Stockholder Questionnaire and a response to any requests for further information as described in the previous sentence and, if an Underwritten Offering, entered into an underwriting agreement with the underwriters in such registration accordance with Section 5(b), and complied with and provided all other documents reasonably request;
(t) provide a legal opinion required under the terms of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement). If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire or a request for further information, with respect in either case, after its respective deadline, the Company shall be permitted to exclude such Holder from being a selling security holder in the Registration Statement or any pre-effective or post-effective amendment thereto. Each Holder acknowledges and agrees that the information in the Selling Stockholder Questionnaire or request for further information as described in this Section 8 will be used by the Company in the preparation of the Registration Statement and hereby consents to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions inclusion of such nature, which opinion shall be addressed to information in the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveStatement.
Appears in 1 contract
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company shall be required to use its best efforts to effect or cause the registration of Registrable Securities have requested that any Registrable Securities be registered pursuant to under the Securities Act as provided in this Agreement, the Parent Company shall use its commercially reasonable efforts and, with respect to effect Section 8(m) and Section 8(n), the registration Holders shall:
(a) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate, and which form shall be available for the sale of such the Registrable Securities in accordance with the intended method methods of disposition distribution thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable its best efforts to cause such registration statement Registration Statement to become and remain effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC amendments and post-effective amendments to such Registration Statement and such amendments and supplements to such registration statement and the prospectus Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act for a Shelf Registration or otherwise necessary to keep such registration statement Registration Statement effective for a period ending when all of at least sixty (60) days and cause the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act orAct, if such registration statement relates and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and otherwise comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during Registration Statement until the earlier of (x) such period in accordance with 60th day or (y) such time as all Registrable Securities covered by such Registration Statement shall have ceased to be Registrable Securities (it being understood that the intended methods Company at its option may determine to maintain such effectiveness for a longer period, whether pursuant to a Shelf Registration or otherwise), provided, however, that a reasonable time before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the Exchange Act), the Company shall furnish to the Holders, the managing underwriter and their respective counsel for review and comment, copies of disposition by the sellers thereof set forth in such registration statementall documents proposed to be filed;
(dc) furnish to the Holders and to any underwriter in connection with an Underwritten Offering such number of conformed copies of such Registration Statement and of each seller of Registrable Securities thereunder amendment and post-effective amendment thereto (in each case including all exhibits) and such number of copies of such registration statement, each amendment and any Prospectus or Prospectus supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller the Holders or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holders or underwriter (the Company hereby consenting to the use (subject to the limitations set forth in Section 8(n) hereof) of the Prospectus or any amendment or supplement thereto in connection with such sellerdisposition);
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(fd) use its commercially reasonable best efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities covered by such Registration Statement under such other securities or “blue sky sky” laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Holders shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided request, except that the Parent Company shall not for any such purpose be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this Section 8(d), it would not otherwise be required obligated to qualify but for this Section 4(f)be so qualified, (ii) to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereofthe Holders, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in Section 8(b) hereof, of the happening of any event as a result of which Company’s becoming aware that the prospectus Prospectus included in such registration statement contains Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, at the request of any such sellerthe Holders, the Parent promptly shall prepare, file with the Commission prepare and furnish to each such seller the Holders a reasonable number of copies of a an amendment or supplement or amendment to such prospectus Registration Statement or related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall not contain include an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleadingthen existing;
(mf) notify the Holders at any time:
(1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information;
(3) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation (or any overt threats) of any proceedings for such purposes;
(4) of the receipt by the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation (or overt threats) of any proceeding for that purpose, and
(5) if at any time the representations and warranties of the Company contemplated by Section 8(i) below cease to be true and correct in all material respects;
(g) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the CommissionSEC, and make available to its security holders an earnings statement that shall satisfy the provisions of Section 11(a) of the Securities Act, provided that the Company shall be deemed to have complied with this Section 8(g) if it shall have complied with Rule 158 under the Securities Act;
(nh) permit use its best efforts to cause all such Registrable Securities to be listed on the NYSE, The Nasdaq Stock Market or any holder other national securities exchange or automated quotation system on which the class of Registrable Securities whobeing registered is then listed, in its good faith judgment (based on if such Registrable Securities are not already so listed and if such listing is then permitted under the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation rules of such registration or comparable statement exchange, and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder provide a transfer agent and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement registrar for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement Registration Statement no later than the effective date of such Registration Statement;
(i) enter into agreements (including an underwriting agreement in the form customarily entered into by the Company in a comparable Underwritten Offering) and take all other appropriate and all commercially reasonable actions in order to be registered with expedite or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate facilitate the disposition of such Registrable SecuritiesSecurities and in such connection, whether or not an underwriting agreement shall be entered into and whether or not the registration shall be an underwritten registration:
(i) make such representations and warranties to the Holders and the underwriters, if any, in form, substance and scope as are customarily made by the Company to underwriters in comparable Underwritten Offerings;
(qii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions shall be reasonably satisfactory (in form, scope and substance) to the managing underwriters, if any, and the Holders) addressed to the Holders and the underwriters covering the matters customarily covered in opinions requested in comparable Underwritten Offerings by the Company;
(iii) obtain “comfort letters” and updates thereof from the Company’s independent certified public accountants addressed to the Holders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort letters” by independent accountants in connection with comparable underwritten offerings on such date or dates as may be reasonably requested by the managing underwriter;
(iv) provide the indemnification in accordance with the provisions and procedures of Section 11 hereof to all parties to be indemnified pursuant to such Section 11; and
(v) deliver such documents and certificates as may be reasonably requested by the Holders and the managing underwriters, if any, to evidence compliance with Section 8(f) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(j) cooperate with the holders of Registrable Securities covered by the registration statement Holders and the managing underwriter or agent, if anyunderwriters to facilitate, to facilitate the extent reasonable under the circumstances, the timely preparation and delivery of certificates representing the securities to be sold under the registration statement such Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter, underwriter or agentunderwriters, if any, or such holders the Holders may requestrequest and/or in a form eligible for deposit with the Depository Trust Company;
(rk) cooperate make available to the Holders, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by the Holders or underwriter (collectively, the “Inspectors”), reasonable access to appropriate officers of the Company and the Company’s subsidiaries to ask questions and to obtain information reasonably requested by such inspector and all financial and other records and other information, pertinent corporate documents and properties of 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 responsibility, provided, however, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspectors in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company or either (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission of a material fact 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, further, that any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with each holder counsel for the applicable Inspectors; and provided, further, that the Holders agrees that it shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of such Records;
(l) in the event of the issuance of any stop order suspending the effectiveness of the Registration Statement or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities included in the Registration Statement for sale in any jurisdiction, the Company shall use all commercially reasonable efforts promptly to obtain its withdrawal;
(m) the Holders shall furnish the Company with such information regarding the Holders and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing, and
(n) the Holders shall, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 8(e) hereof forthwith discontinue disposition of Registrable Securities covered by pursuant to the registration statement and each underwriter Prospectus or agent participating in the disposition of Registration Statement covering such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from until the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters Holders shall have received copies of the type customarily covered supplemented or amended Prospectus contemplated by cold comfort letters as the underwriters in such registration reasonably request;
(tSection 8(e) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (hereof and, if such registration includes an underwritten Public Offeringso directed by the Company, dated the date Holders shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in the Holders’ possession, of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and Prospectus covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities current at the time an Automatic Shelf Registration Statement is filed, pay of receipt of such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivenotice.
Appears in 1 contract
Sources: Registration Rights Agreement
Registration Procedures. In connection with Whenever the Registration Company is required to be effected register Registrable Securities pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this AgreementSections 2 or 3 hereof, the Parent shall Company will use its commercially reasonable efforts to effect the registration and to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall Company will, as expeditiously promptly as reasonably possiblepracticable:
(a1) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities on a form available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and use its commercially reasonable efforts to cause such registration statement Registration Statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)applicable time period specified herein;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c2) prepare and file with the Commission such amendments (including post-effective amendments) to the Registration Statement and such supplements to such registration statement and the prospectus used in connection therewith Prospectus as may be necessary to keep such registration statement Registration Statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates and to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such Registration Statement for the applicable time period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementspecified herein;
(d3) furnish to each seller selling Holder of Registrable Securities thereunder covered by a Registration Statement and to each underwriter, if any, such number of copies of such registration statementthe Registration Statement, each amendment and supplement post-effective amendment thereto, and the prospectus Prospectus included in such registration statement Registration Statement (including each preliminary prospectusprospectus and any supplement to such Prospectus and any other prospectus filed pursuant to Rule 424 under the Securities Act), in each Free-Writing Prospectus case including all exhibits, and such other documents as such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such sellerHolder or to be disposed of by such underwriter;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f4) use its commercially reasonable efforts to registerregister or qualify and, qualify if applicable, to cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or secure an qualification (or exemption from such registration with respect to such or qualification) of the Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions as any selling Holder or underwriters (if any) shall reasonably request, to keep each such registration or qualification (or exemption therefrom) effective during the lead underwriter or the Applicable Approving Party reasonably requests period such Registration Statement is required to be kept effective and to do any and all other acts and or things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller (provided the applicable Registration Statement; provided, however, that the Parent shall Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(f), or (ii) consent to general service of process or taxation in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction)where it is not otherwise so subject;
(g5) promptly notify in writing each seller of cause all such Registrable Securities to be listed or quoted (ias the case may be) after it receives notice thereof, on each national securities exchange or other securities market on which securities of the same class as the Registrable Securities are then listed or quoted;
(6) provide a transfer agent and registrar for all such Registrable Securities and a CUSIP number for all such Registrable Securities not later than the effective date of such Registration Statement;
(7) use its commercially reasonable efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or suspending the qualification (or exemption from qualification) of any of the Registrable Securities included therein for sale in any relevant jurisdiction, and, in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending the qualification of any Registrable Securities included in such Registration Statement for sale in any relevant jurisdiction, use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(8) promptly notify the selling Holders and time the managing underwriters, if any, and confirm such notice in writing, when such registration statement and each a Prospectus or any supplement or post-effective amendment thereto to such Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto, when the same has become effective effective, of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any Prospectus or the initiation of any proceedings by any governmental authority for that purpose, of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a prospectus Registration Statement or supplement to any prospectus relating to a registration statement has been filed and when any registration of the Registrable Securities for offer or qualification has become effective sale under a state the securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, laws of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationrelevant jurisdiction, and (iii) at of its obtaining knowledge of the occurrence of any time when event or the existence of any facts that make any statement made in such Registration Statement or Prospectus untrue in any material respect or that require the making of any change in such Registration Statement or Prospectus so that it will not omit to state a prospectus relating thereto is material fact required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact stated therein or omits any fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleadingmisleading (which notice shall be accompanied by an instruction to the selling Holders and the managing underwriters, andif any, at to suspend the request use of the Prospectus until the requisite changes have been made);
(9) as promptly as practicable upon obtaining knowledge of the occurrence of any such sellerevent contemplated by Section 4(b)(8) above, the Parent promptly shall prepare, file with the Commission and furnish use its commercially reasonable efforts to each such seller a reasonable number of copies of prepare a supplement or post-effective amendment to such prospectus the Registration Statement or the Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold, such prospectus shall the Prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact required to be stated therein or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;; and
(m10) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered if requested by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agentunderwriters, if any, or a Holder of Registrable Securities being sold, promptly incorporate in a Prospectus, supplement or post-effective amendment such holders may requestinformation as the requesting Person(s) reasonably request to be included therein relating to the sale of the Registrable Securities, and make all required filings of such Prospectus, supplement or post-effective amendment promptly following notification of the matters to be incorporated in such supplement or post-effective amendment;
(r11) cooperate with each holder if the 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 owning a majority of the Registrable Securities covered included in the registration or by the registration statement and each underwriter managing underwriters in order to expedite or agent participating in facilitate the disposition of such Registrable Securities and their respective counsel (including, in connection the case of a Demand Registration, by causing senior executives of the Company to participate in a reasonable number of “roadshow” or similar meetings with any filings required to be made with FINRApotential investors);
(s12) if such registration includes the offering is an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants “comfort” letters and addressed to the underwritersupdates thereof, in customary form form, scope and covering such matters substance, from the independent certified public accountants of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement Company (and, if such registration includes an underwritten Public Offeringnecessary, dated the date any other independent certified public accountants of any subsidiary of the closing under Company or of any business acquired by the underwriting agreementCompany for which financial statements and financial data are, or are required to be, included in the Registration Statement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;; and
(u13) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (obtain opinions and not become an ineligible issuer (as defined updates thereof, in Rule 405)) during customary form, scope and substance, from counsel to the period during which such Automatic Shelf Registration Statement is required Company to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time extent necessary or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivedesirable.
Appears in 1 contract
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Sections 4 or 5 to this Agreement, the Parent shall use its commercially reasonable best efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission a registration statement (1) which, in the case of an underwritten public offering pursuant to Section 4, shall be on Form S-1 or S-3 or such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses other form of general applicability satisfactory to the managing underwriters selected as may be necessary to comply with applicable securities laws, herein provided) with respect to such Registrable Securities securities and use commercially reasonable its best efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealerSection 6(a) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) furnish use its best efforts to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided shall request; provided, however, that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(ge) promptly use its best efforts to list the Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date Restricted Stock and time when each underwriter under such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtainedstatement, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (i) the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and(ii) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose, or (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Restricted Stock for sale in any jurisdiction or the initiation of any proceeding for such purposes, whereupon each such seller shall refrain from making any sales of Restricted Stock in any jurisdiction in which such sales may not be made until such seller has either received from the Company a prospectus supplement describing such event or has been advised in writing by the Company that the use of the prospectus may be resumed;
(g) if the offering is underwritten and at the request of any seller of Restricted Stock, use its best efforts to furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Parent promptly shall prepareSecurities Act and that (A) to the best knowledge of such counsel, file no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the Commission requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements contained therein) and furnish (C) to each such other effects as reasonably may be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a reasonable number of copies of a supplement or amendment letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such prospectus so seller, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as thereafter delivered to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the purchasers period ending no more than five business days prior to the date of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(hletter) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kh) make available for inspection by any each seller of Registrable SecuritiesRestricted Stock, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l. For purposes of Section 6(a) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement and 6(b) and 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;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counselSection 4(c), could reasonably be expected to the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be an underwriter deemed to extend until the earlier of (1) the sale of all Restricted stock covered thereby, or a controlling Person (2) 120 days after the effective date thereof. In connection with each registration hereunder, the sellers of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished Restricted Stock will furnish to the Parent Company in writing, which in writing such information with respect to themselves and the reasonable judgment of such holder and its counsel should be included;
(o) in proposed distribution by them as the event of the issuance of any stop order suspending the effectiveness of a registration statement, Company may reasonably request or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent as shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary in order to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate assure compliance with the holders of Registrable Securities covered by the registration statement federal and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing applicable state securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate laws. In connection with each holder of Registrable Securities covered by the registration statement and each underwriter pursuant to Sections 4 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;
(s) if such registration includes 5 covering an underwritten public offering, use its commercially reasonable efforts the Company and each seller agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to managing underwriter selected in the underwriters, manner herein provided in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 1 contract
Sources: Registration Rights Agreement (Nobel Learning Communities Inc)
Registration Procedures. In connection with the Demand Registration to be effected obligations of the Company pursuant to and in accordance with Section 3 of this Agreement and subject to receipt from the Resale Shelf Registration Statement, and whenever the holders sellers of Registrable Securities have requested that any Registrable Securities of the information to be registered pursuant to this Agreementfurnished by them, as provided below, the Parent Company shall use its commercially reasonable best efforts to effect the registration and such registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent shall as expeditiously as reasonably possibleCompany shall:
(a) except in connection prepare and file with the SEC, as soon as reasonably possible, a Piggyback RegistrationRegistration Statement or Registration Statements relating to the Demand Registrations on Form S-3, prepare if Form S-3 is then available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, or such other form as is then appropriate for use by the Company under the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statementAct, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable best efforts to cause each such registration statement Registration Statement to become effectiveeffective as promptly as practicable and remain effective as provided herein; provided, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effectivehowever, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement Registration Statement or prospectus Prospectus or any amendments or supplements thereto, including documents incorporated or deemed to be incorporated by reference, the Parent Company shall furnish to counsel selected the holders of the Registrable Securities covered by such Registration Statement, their Special Counsel and the Applicable Approving Party managing underwriter or underwriters, if any, copies of all such documents proposed to be filed, which documents shall will be subject to the review and comment of such counsel)holders, their Special Counsel and such underwriters, if any, and the Company shall not, subject to the requirements of applicable law and Section 3, file any such Registration Statement, or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority in number of the Registrable Securities covered by such Registration Statement, or the managing underwriter or underwriters, if any, shall reasonably object on a timely basis;
(b) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement required to be filed pursuant to Section 3 of this Agreement as may be (i) reasonably requested by any holder (to the extent such request relates to information relating to such holder) or (ii) necessary to keep such Registration Statement effective for the time period specified in Section 3; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, if (i) reasonably requested by any holder (to the extent such request relates to information relating to such holder) or (ii) required; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement or such Prospectus;
(c) use reasonable best efforts to promptly notify each holder the selling holders of Registrable Securities, their Special Counsel and the managing underwriters, if any, and (if requested by any such Person) confirm such notice in writing, (1) when a Prospectus or any Prospectus supplement or post-effective amendment related to such Registrable Securities has been filed, and, with respect to a Registration Statement or any post-effective amendment related to such Registrable Securities, when the same has become effective, (2) of any request by the SEC for amendments or supplements to such a Registration Statement or related Prospectus or for additional information, (A3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of such a Registration Statement or any registration statement order preventing or suspending the use of any preliminary or final prospectus or the initiation of any proceedings for that purpose, (B4) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) entered into pursuant to Section 6 below cease to be true and correct, (5) of the receipt by the Parent or its counsel Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (6) of the happening of any event which makes any statement made in such a Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires the making of any changes in such Registration Statement or Prospectus so that such Prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (C7) prior to the initiation of a Suspension Period;
(d) use reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of each registration statement filed hereundersuch a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(ce) prepare and file if requested by the managing underwriter or underwriters or any holder of Registrable Securities being sold in connection with the Commission such amendments and supplements an underwritten offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement related to such registration statement Registrable Securities such information as the managing underwriters and the prospectus used in connection therewith such holder agree should be included therein as may be necessary to keep required by applicable law, (ii) make all required filings of such registration statement Prospectus supplement or such post-effective for a period ending when all amendment as soon as practicable after notification of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth matters to be incorporated in such registration statement Prospectus supplement or such post- effective amendment and (but iii) supplement or make amendments to such Registration Statement; provided, however, that the Company shall not be required to take any of the actions in any event before the expiration of any longer period required under the Securities Act orthis Section 6(e) which are not, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is Company, required by law to be delivered or in connection compliance with sale applicable law.
(f) upon request of a selling holder of Registrable Securities or its Special Counsel, make available to each selling holder of Registrable Securities or its Special Counsel a copy of each Registration Statement related to such Registrable Securities and any post-effective amendment thereto, including financial statements, schedules and all exhibits (including, if requested, those previously furnished or proposed to be incorporated by an underwriter or dealerreference) and comply at the earliest practicable time under the circumstances before the filing of such documents with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statementSEC;
(dg) furnish deliver to each seller all selling holders of Registrable Securities thereunder such number of Securities, their Special Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses related to such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement Registrable Securities (including each preliminary prospectus), each Free-Writing Prospectus ) and as many copies of any amendment or supplement thereto and such other documents incorporated by reference therein as such seller Persons may reasonably request request; subject to the restrictions contained in order the last paragraph of Section 5, the Company consents to facilitate the disposition use of such Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities owned covered by such sellerProspectus or any amendment or supplement thereto;
(eh) during prior to any period in which a prospectus is required public offering of Registrable Securities, use reasonable best efforts to be delivered under the Securities Act, promptly file all documents required to be filed register or qualify or cooperate with the Commissionselling holders of Registrable Securities, including pursuant to Sections 13(a)the underwriters, 13(c)if any, 14 and their respective counsel in connection with the registration or 15(d) qualification of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities for offer and sale under such other the securities or blue sky Blue Sky laws of such jurisdictions as the lead any seller or underwriter or the Applicable Approving Party reasonably requests in writing; use reasonable best efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective and do any and all other acts and or things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller (provided the applicable Registration Statement; provided, however, that the Parent shall Company will not be required to (iA) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this Section 4(f)then so qualified, (iiB) consent take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject, or (iiiC) take any action which would subject itself it to taxation the assessment of taxes in any such jurisdiction)jurisdiction where it is not then so subject;
(gi) promptly notify in writing cooperate with the selling holders of Registrable Securities 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;
(j) use reasonable best efforts to cause the Registrable Securities covered by each Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities Securities;
(ik) as expeditiously as possible after it receives notice thereofthe occurrence of any event contemplated by paragraph 5(c)(6) above, of the date and time when such registration statement and each but subject to Section 3(a), prepare a post-effective amendment thereto has become effective to each Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of document incorporated therein by reference or file any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is other required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall will not contain any untrue statement of a material fact or omit to state a material fact or necessary to make the statements therein, in light of the circumstances under in which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(pl) use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement a Registration Statement to be registered with or approved listed on the securities exchange, if any, on which similar securities issued by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate Company are then listed if requested by the disposition holders of a majority in aggregate number of shares of such issue or class of Registrable Securities;
(qm) cooperate enter into such agreements (including an underwriting agreement) consistent with the holders of Registrable Securities covered this Section 5 and use reasonable efforts to take all such other actions in connection therewith as shall have been reasonably requested by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such the holders may request;
(r) cooperate with each holder of a majority in principal amount of the Registrable Securities covered by the registration statement and each underwriter being sold in order to expedite or agent participating in facilitate the disposition of such Registrable Securities including, whether or not an underwriting agreement is entered into and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such whether or not the registration includes is an underwritten public offeringregistration, use its commercially (1) making such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirming the same if and when reasonably requested; (2) using reasonable best efforts to obtain for the benefit of the 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 the holders of a cold comfort letter from majority in principal amount of the Parent’s independent public accountants and reasonably Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) using its reasonable best efforts to obtain "cold comfort" and "bring-down" letters and updates thereof from the independent certified public accountants of the Company addressed to each selling holder of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered by in "cold comfort comfort" and "bring-down" letters as in connection with underwritten offerings; (4) if an underwriting agreement is entered into, the underwriters same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) delivering such registration reasonably request;
(t) provide a legal opinion documents and certificates to certify that the representations and warranties of the Parent’s outside counselCompany made pursuant to clause (1) above continue to be true and correct and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or if such offering is not underwritten, dated the effective date of the applicable registration statement or, as and to the extent required thereunder;
(n) make available for inspection by a representative of the holders of Registrable Securities being sold, any underwriter participating in any disposition of Registrable Securities and any attorney or accountant retained by such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibility and cause the officers, directors, employees and representatives of the independent public accountants who have certified the Company's financial statements to make themselves available to discuss the business of the Company and supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any records, information or documents that are designated by the Company as confidential at the time of delivery of such records, information or documents shall be kept confidential by such Persons and their designees unless such records, information or documents are in the public domain or disclosure of such records, information or documents is required by court or administrative order or unless such records, information or documents otherwise become public knowledge or in the opinion of counsel to such Person disclosure by such Person is otherwise required by law;
(o) provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of the applicable registration statement;
(p) make available to each selling Holder, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first month after the effective date of the applicable registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(and, if such registration includes q) to the extent reasonably requested by the lead or managing underwriters in connection with an underwritten Public offering pursuant to Section 3(a) (including a Shelf Underwritten Offering), dated send appropriate officers of the Company to attend "road shows" scheduled in connection with an underwritten offering (it being understood that, the Company will not be obligated to participate in any road show unless the aggregate fair market value of the Registrable Securities included in the offering is at least $15,000,000 (based on the closing price of the relevant security on the trading day prior to the date of the closing under the underwriting agreementrelated request for demand registration)), with respect all out-of-pocket costs and expenses incurred by the Company or such officers in connection with such attendance to be paid by the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwritersCompany;
(ur) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, otherwise use its commercially reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during take such other steps necessary to effect the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering registration of the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 contemplated hereby and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effective.comply with all
Appears in 1 contract
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders of Company is required to register Registrable Securities have requested that any Registrable Securities be registered pursuant to this AgreementSecurities, the Parent shall Company will use its commercially reasonable best efforts to effect the such registration and to permit the sale of such Registrable Securities in accordance with the intended method plan of disposition distribution thereof, and pursuant thereto the Parent shall Company will as expeditiously as reasonably possible:
(a) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires SEC as soon as practicable a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, Statement with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such registration statement Registration Statement to become effective, or (2) in effective and remain effective until the case an effective Resale Shelf Registrable Securities covered by such Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to such Resale Shelf Registration Statement (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel)have been sold;
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the prospectus used in connection therewith Prospectus, as may be necessary requested by any Holder of Registrable Securities or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep such registration statement the Registration Statement effective for a period ending when until all of the securities Registrable Securities covered by such registration statement have been disposed of Registration Statement are sold in accordance with the intended methods plan of distribution by the sellers thereof set forth in such registration statement (but not in any event before Registration Statement or supplement to the expiration of any longer period required under the Securities Act orProspectus, if unless such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Freemay otherwise be re-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including sold pursuant to Sections 13(a), 13(c), 14 or 15(dRule 144(k) of under the Securities Act;
(fc) deliver to each selling Holder of Registrable Securities and the underwriters, if any, without charge, as many copies of each Prospectus (and each preliminary Prospectus) as such Persons may reasonably request (the Company hereby consenting to the use its commercially reasonable efforts of each such Prospectus (or preliminary Prospectus) by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus (or preliminary Prospectus); and
(d) prior to registerany public offering of Registrable Securities, register or qualify or secure an exemption from cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration with respect to or qualification of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions as the lead underwriter such selling Holders or the Applicable Approving Party reasonably requests underwriters may designate in writing and do any and all other acts and things which may be reasonably anything else necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller (the Registration Statement; provided that the Parent Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would not otherwise be required to qualify but for this Section 4(f), (ii) consent subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that where it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectivethen so subject.
Appears in 1 contract
Sources: Registration Rights Agreement (Teraforce Technology Corp)
Registration Procedures. In connection with the Registration to be effected registration obligations of the Company pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant in accordance with Sections 2 and 3 hereof (and subject to this AgreementSections 2 and 3 hereof), the Parent Company shall use its commercially reasonable efforts to effect the such registration and to permit the sale of such Registrable Securities Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Parent Company shall as expeditiously as reasonably possible:possible (but subject to Sections 2 and 3 hereof):
(a) except in connection prepare and file with the SEC a Piggyback Registration, prepare Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, within 60 days following receipt of such request, file with subject to the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, Company's right to terminate or abandon a registration statementpursuant to Section 3(c) hereof, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement Registration Statement to become effective, or effective and remain effective as provided herein;
(2b) in the case an effective Resale Shelf Registration Statement is on prepare and file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant SEC such amendments (including post-effective amendments) to such Resale Shelf Registration Statement Statement, and such supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such Registration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that at least five (5) Business Days 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 before filing a registration statement Registration Statement or prospectus Prospectus, or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act), the Parent Company shall furnish to the Holders of Registrable Shares covered by such Registration Statement and their counsel selected by the Applicable Approving Party for review and comment, copies of all such documents proposed required to be filed, which documents shall be subject to the review and comment of such counsel);
(bc) notify each holder the Holders of any Registrable Securities Shares covered by such Registration Statement promptly and (if requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post- effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (Aiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of any registration statement such Registration Statement or the initiation of any proceedings for that purpose, (Biv) of the receipt by the Parent or its counsel 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 in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (Cv) of the effectiveness happening of each registration any event that requires the making of any changes in such Registration Statement, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements of a material fact or omit to such registration statement and the prospectus used in connection therewith as may state any material fact required to be stated therein or necessary to keep such registration statement effective for a period ending when all of make the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but statements therein not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;misleading:
(d) 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;
(e) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each seller counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of Registrable Securities thereunder 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 such registration statementthe preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post- effective amendment and or supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned Shares of such Holder covered by such seller;
(e) during any period Registration Statement in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed conformity with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) requirements of the Securities Act;
(f) prior to any public offering of Registrable Shares covered by such Registration Statement, use its commercially reasonable efforts to register, register or qualify or secure an exemption from registration with respect to such Registrable Securities Shares for offer and sale under such other the securities or blue sky Blue Sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party Holders of such Registrable Shares shall reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition request in such jurisdictions of the Registrable Securities owned by such seller (provided writing; provided, however, that the Parent Company shall not in no event be required to (i) qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it would is not otherwise be required at the time so qualified or to qualify but for this Section 4(f), (ii) execute or file a general consent to general service of process in any such jurisdiction where it has not theretofore done so or (iii) to take any action that would subject itself it to general service of process or taxation in any such jurisdiction)jurisdiction where it is not then subject;
(g) promptly notify in writing each seller upon the occurrence of such Registrable Securities (iany event contemplated by paragraph 5(c)(v) after it receives notice thereofabove, of the date and time when such registration statement and each prepare a supplement or post-effective amendment thereto has become effective to such Registration Statement or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law the related Prospectus or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment document incorporated or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required deemed to be delivered under the Securities Act, of the happening of incorporated therein by reference and file any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesShares being sold thereunder (including upon the termination of any Delay Period), such prospectus shall Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities required to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party stated therein or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(ph) use its commercially reasonable efforts to cause such all Registrable Securities Shares covered by such registration statement Registration Statement to be registered 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;
(i) on or before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with or approved printed certificates for the Registrable Shares covered by such Registration Statement, which are in a form eligible for deposit with The Depository Trust Company;
(j) if such offering is an underwritten offering, make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering pursuant to such Registration Statement, and any attorney, accountant or other governmental agencies agent retained by any such Holder or authorities underwriter (collectively, the "Inspectors"), all financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and affiliates (collectively, the "Records"), as may shall be reasonably necessary to enable them to exercise their due diligence responsibilities; provided, however, that the sellers thereof Records that the Company determines, in good faith, to consummate be confidential and which it notifies the Inspectors in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company (which shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus) or 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 further, 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 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 disclosure of such Records; and
(k) 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 Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement Shares, and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriterconnection, or agent, if any, or such holders may request;
(ri) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a 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 as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort letter comfort" letters and updates thereof from the Parent’s 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 such matters of the type customarily covered by in "cold comfort comfort" letters as in connection with underwritten offerings, (iii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures substantially to the underwriters effect set forth in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), 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 registration statement, extent required thereunder. The Company may require each amendment Holder of Registrable Shares covered by a Registration Statement to furnish such information regarding such Holder and supplement theretosuch 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 prospectus included therein (including 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 preliminary prospectus) and such other documents relating thereto in customary form and covering such matters Company of the type customarily covered by legal opinions happening of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end event of the third yearkind described in Section 5(c)(ii), refile a new Automatic Shelf Registration Statement covering the Registrable Securities5(c)(iii), and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary5(c)(iv) during the period throughout which such registration statement is required to be kept effective.or
Appears in 1 contract
Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, If and whenever the holders Company is required by the provisions of Registrable Securities have requested that any Registrable Securities be registered pursuant Section 9(b) to this Agreement, the Parent shall use its commercially reasonable efforts to effect the registration and of any shares of Restricted Stock under the sale of such Registrable Securities in accordance with Act, the intended method of disposition thereofCompany will, and pursuant thereto the Parent shall as expeditiously as reasonably possible:
(ai) except in connection with a Piggyback Registration, prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of such request, file with the Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, statement with respect to such Registrable Securities securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an and remain effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale period of Registrable Securities pursuant to such Resale Shelf Registration Statement the distribution contemplated thereby (provided that at least five (5) Business Days before filing a registration statement or prospectus or any amendments or supplements thereto, the Parent shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counseldetermined as hereinafter provided);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Parent or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;
(cii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the period ending when all of the securities covered by such registration statement have been disposed of specified in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealerSection 9(c)(i) and comply with the provisions of the Securities Act with respect to the disposition of all securities Restricted Stock covered by such registration statement during such period in accordance with the sellers' intended methods method of disposition by the sellers thereof set forth in such registration statement for such period;
(iii) furnish to each selling Holder and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and amendment thereto) as such persons reasonably may request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(div) furnish use commercially reasonable to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, register or qualify the prospectus included in Restricted Stock covered by such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register, qualify or secure an exemption from registration with respect to such Registrable Securities under such other securities or "blue sky sky" laws of such jurisdictions as the lead sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (shall request; provided that the Parent Company shall not for any such purpose be required to (i) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified or to qualify but for this Section 4(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(gv) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of use commercially reasonable to list the date and time when Restricted Stock covered by such registration statement with any securities exchange on which the Common Stock of the Company is then listed;
(vi) immediately notify each selling Holder and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective underwriter under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional informationstatement, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the prospectus included contained in such registration statement contains statement, as then in effect, includes an untrue statement of a material fact feet or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, andand each Holder hereby covenants and agrees, at upon receipt of such notification, to discontinue disposition of Restricted Stock pursuant to Such registration statement until the request time of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number effectiveness of copies of an amendment thereto or a supplement or amendment to such prospectus included therein as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesRestricted Stock, such prospectus shall not contain include an untrue statement of a material fact feet or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(hvii) cause if the offering is underwritten and at the request of any selling Holder, furnish on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (1) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such selling Holder, stating that such registration statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Act (except that such Registrable Securities counsel need not express any opinion as to financial statements contained therein) and (C) to such other effects as reasonably may be listed on each securities exchange on which similar securities issued requested by counsel for the underwriters or by such selling Holder or its counsel; and (2) a letter dated such date from the independent public accountants retained by the Parent Company, addressed to the underwriters and to such selling Holder, stating that they are then listed and, if not so listed, to be listed on a securities exchange and, without limiting independent public accountants within the generality meaning of the foregoingAct and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to arrange for at least two market makers form in all material respects with the applicable accounting requirements of the Act, and such letter shall additionally cover such other financial matters (including information as to register as the period ending no more than five (5) business days prior to the date of such letter) with respect to such Registrable Securities with FINRA;registration as such underwriters reasonably may request; and
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(kviii) make available for inspection by any seller of Registrable Securitieseach selling Holder, any underwriter participating in any disposition distribution pursuant to such registration statement statement, and any attorney, accountant or other agent retained by any such seller selling Holder or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Parent’s Company's officers, managers, directors, employees, agents, representatives directors and independent accountants employees to supply all information reasonably requested by any such sellerselling Holder, underwriter, attorney, accountant or agent in connection with such registration statement;
. For purposes of Section 9(c)(i) and 9(c)(ii), the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby and one hundred twenty (l120) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in days after the effective date thereof. In connection with any Piggyback Registration hereunder complies each registration hereunder, the selling Holders will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws and to make the registration statement correct, accurate and complete in all material respects with respect to such selling Holders' participating in the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, offering; provided that this requirement shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be limit any disclosure obligation arising out of any selling Holder's relationship to the Company if one of such Holder's agents or affiliates is an underwriter officer, director or a controlling Person control person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writingCompany. In addition, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required underwritten registration, the selling Holders shall, if requested by the Company, execute such other underwriting related agreements, which are reasonably satisfactory to them and which shall contain such provisions as may be made customary and reasonable in order to accomplish the registration of the Restricted Stock. In connection with FINRA;
(seach registration pursuant to Section 9(b) if such registration includes covering an underwritten public offering, use its commercially reasonable efforts the Company and each selling Holder agree to obtain enter into a cold comfort letter from written agreement with the Parent’s independent public accountants and addressed to the underwriters, managing underwriter in customary such form and covering containing such matters provisions as are customary in the securities business for such an arrangement between such underwriter and companies of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment Company's size and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Parent is required to re-evaluate its WKSI status the Parent determines that it is not a WKSI, use its commercially reasonable efforts to refile the registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be kept effectiveinvestment stature.
Appears in 1 contract
Sources: Warrant Agreement (Egenera, Inc.)