Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except as otherwise provided: (a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law. (b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented. (c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate. (d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable. (e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement. (f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference). (g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject. (i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering. (j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities. (l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. (m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public. (n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Warrant Registration Rights Agreement (Covad Communications Group Inc), Warrant Registration Rights Agreement (Covad Communications Group Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except as otherwise provided:under this Agreement;
(a) Prepare Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex B (a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing Date or by the end of the fourth (4th) Trading Day following the date on which such Holder receives a request for Annex B from the Company.
(i) The Company shall prepare and file with the SEC as soon as practicable each Commission such amendments, including post-effective amendments, to a Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object used in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement connection therewith as may be necessary to keep such a Registration Statement continuously effective (subject to any requirement that a post-effective amendment be declared effective by the Commission) as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities subject to any SEC Guidance that sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment; and (iv) comply in all material respects with the applicable provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall as soon as reasonably practicable file, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) The Company shall notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one (i1) Trading Day following the day (i)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filedto a Registration Statement is proposed to be filed (but not including (i) any Exchange Act filing or (ii) any supplement or post-effective amendment to a registration statement that is not related to such Holder’s Registrable Securities), and(B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective, (including in such notice ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)Prospectus or for additional information, (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respectProceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement or Prospectus; provided, that in no event shall any such notice contain any information which would be appropriateconstitute material, non-public information regarding the Company or any of its Subsidiaries.
(de) Use every The Company shall use its reasonable effort best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish The Company shall furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of If requested by a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offeringHolder, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each shall cooperate with such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Share Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(d), as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, the Company shall prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed 90 calendar days (which need not be consecutive days) in any 12-month period.
(kj) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the The Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC Commission in connection with obtaining and make generally available to its security holders earnings statements satisfying maintaining the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end effectiveness of any 12-month period Registration Statement required to be filed and maintained with the Commission under this Agreement.
(or ninety (90k) days after The Company may require each selling Holder to furnish to the end Company a certified statement as to the number of any 12-month period shares of Common Stock beneficially owned by such Holder and, if such period is a fiscal year) (i) commencing at required by the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering Commission, the natural persons thereof that have voting and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on dispositive control over the firshares
Appears in 2 contracts
Sources: Registration Rights Agreement (SurePure, Inc.), Registration Rights Agreement (SurePure, Inc.)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each Commission such amendments, including post-effective amendments, to a Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object used in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed hereby; Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which would constitute material non-public information as to any Holder which has not executed a confidentiality agreement with the Company), and (iv) comply in force) promulgated under the Securities Act; and comply all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex A (a “Selling Stockholder Questionnaire”) on a date that is not less than four (4) Trading Days prior to the Filing Date.
(cb) Notify Use its best efforts to avoid the Holders of Registrable Securitiesissuance of, their counsel and the managing underwriter or underwritersor, if anyissued, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, obtain the withdrawal of (i) when a Prospectus any order stopping 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdictionStatement, or (Bii) the initiation any suspension of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nc) Comply with all applicable rules and regulations of the SEC Commission.
(d) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and make generally available to its security holders earnings statements satisfying dispositive control over the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firshares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Red Metal Resources, Ltd.), Registration Rights Agreement
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than five (but in any event on or 5) business days prior to the date filing of filing thereof required under this Agreement) and cause such each Registration Statement and not less than one (1) business days prior to become effective and remain effective as provided herein; provided, however, that before the filing of any such Registration Statement related Prospectus or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) amendment or any amendments or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Legal Counsel copies of all such documents proposed to be filed a and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary in the reasonable time prior to the proposed filing thereofopinion of Legal Counsel. The Company shall not initially file any a Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders Subscribers of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Legal Counsel shall reasonably object in good faith, provided that, the Company is notified of such objection in writing unless failure no later than three (3) business days after Legal Counsel has been so furnished copies of a Registration Statement. Each Subscriber agrees to file any such amendment or supplement would involve furnish to the Company with a violation of completed shareholder questionnaire upon request from the Securities Act or other applicable lawCompany.
(b) Prepare (i) Use commercially reasonable efforts to prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed hereby; Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then amendment thereto and provide as promptly as reasonably possible to Legal Counsel true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which would constitute material non-public information as to any Subscriber which has not executed a confidentiality agreement with the Company), and (iv) comply in force) promulgated under the Securities Act; and comply all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Subscribers thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter Subscribers (or underwritersLegal Counsel, if any) of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and (but in if requested by any event within two (2such person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and(B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective, (including in such notice ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)Prospectus or for additional information, (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement would be appropriateor Prospectus, provided that, any and all of such information shall remain confidential to each Subscriber until such information otherwise becomes public, unless disclosure by a Subscriber is required by law.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anySubscriber, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such person, and all exhibits to the extent requested by such person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system need not be furnished in physical form.
(f) The Company shall cooperate with any broker-dealer through which a Subscriber proposes to resell its Registrable Securities in effecting a filing with the FINRA Corporate Financing Department pursuant to NASD Rule 2710, as requested by any such Subscriber, and the Company shall pay the filing fee required by such filing within two (2) business days of request therefor.
(g) Deliver Prior to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders any resale of Registrable Securities and the underwriter or underwriters or agentsby a Subscriber, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel selling Subscribers in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Subscriber under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Subscriber reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, howeverthat, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject subject, file a general consent to service of process in any such jurisdiction, or (Ci) become subject to taxation register or qualify in any jurisdiction where it is not then so subjectwhich imposes a merit review standard or (ii) which requires any shareholder to escrow any securities as a condition of registration or qualification.
(ih) Cooperate If requested by a Subscriber, cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, such Subscribers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as any such Subscriber may request.
(i) If the managing underwriter or underwritersCompany notifies the Subscribers in accordance with clauses (iii) through (vi) of Section 5.3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, if any, or Holders then the Subscribers shall suspend use of such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may reasonably request at least two Business Days prior be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 5.3(j) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed 60 calendar days (which need not be consecutive days) in any sale of Registrable Securities in a firm commitment underwritten public offering12 month period.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use Use commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each selling Subscriber to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Subscriber and, if required by the Commission, the natural persons thereof that have voting and make generally available to its security holders earnings statements satisfying dispositive control over the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firshares.
Appears in 2 contracts
Sources: Subscription Agreement (Intellicell Biosciences, Inc.), Subscription Agreement (Intellicell Biosciences, Inc.)
Registration Procedures. In connection with the obligations of the Company with respect to (a) Whenever any Registration Statement Stockholders holding Registrable Securities have requested that any Registrable Securities be registered pursuant to Sections 2.1, 2.2 and 2.6 hereofSection 6.1 of this Agreement, the Company shallwill use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, except and pursuant thereto the Company will as otherwise providedexpeditiously as possible:
(ai) Prepare prepare and file with the SEC as soon as practicable each such Commission a Registration Statement (but in any event on or prior with respect to the date of filing thereof required under this Agreement) such Registrable Securities and use its best efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided, however(PROVIDED, that at least 20 days before filing any such a Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereofas defined below) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)thereto, the Company shall, upon request, afford promptly will furnish to counsel selected by the Holders of the Demand Registration Stockholders holding Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereof. The timely review of such counsel and the Company shall will not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) amendment thereto or any amendments Prospectus or supplements thereto (only for registrations pursuant any supplement thereto, including documents incorporated by reference, to Section 2.1 hereofwhich such counsel shall reasonably object) if the Holders of a majority of and remain effective until the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.Statement have been sold;
(bii) Prepare prepare and file with the SEC Commission such amendments and post- effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for until the time periods prescribed hereby; earliest to occur of (a) the sale of all such Registrable Securities, (b) the sale by the underwriter(s) of all such Registrable Securities purchased by it/them, and (c) 180 days after the effective date of the Registration Statement and, comply with the provisions of the Securities Act with respect to the disposition of all Securities covered by such Registration Statement during such effective period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement and cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.;
(ciii) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy furnish to each seller of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties such number of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case copies of such Registration Statement, it will conform each amendment and supplement thereto, the Prospectus included in all material respects with the requirements such Registration Statement (including each preliminary Prospectus and each Prospectus filed under Rule 424 of the Securities Act Act) and it will not contain any untrue statement of a material fact or omit such other documents as each such seller may reasonably request in order to state any material fact required to be stated therein or necessary to make facilitate the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any disposition of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any owned by each such order is issued, to obtain the withdrawal of any such order as soon as practicable.
seller (e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities it being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after understood that the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such the Prospectus and each any amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, such seller in connection with the offering and sale of the Registrable Securities covered by such the Prospectus and or any amendment or supplement thereto.);
(hiv) Prior to any offering of Registrable Securities, use its best efforts to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, qualify such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any seller reasonably request in writingrequests, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees use its best efforts to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (effective, including through new filings, amendments or exemption therefrom) effective renewals, during the Effectiveness Period period such Registration Statement is required to be kept effective, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities covered thereby; providedRegistrable Securities owned by such seller;
(v) notify each seller of such Registrable Securities, howeverat any time when a Prospectus relating thereto is required to be delivered under the Securities Act, that 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 Company will promptly prepare (and, when completed, give notice to each seller of Registrable Securities) a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; PROVIDED that upon such notification by the Company, each seller of such Registrable Securities will not offer or sell such Registrable Securities until the Company has notified such seller that it has prepared a supplement or amendment to such Prospectus and delivered copies of such supplement or amendment to such Seller;
(vi) cause all such Registrable Securities to be required listed, prior to the date of the first sale of such Registrable Securities pursuant to such registration, on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed with the National Association of Securities Dealers automated quotation system (A"NASDAQ");
(vii) qualify generally provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(viii) enter into all such customary agreements (including underwriting agreements in customary form) and take all such other actions as counsel for the Stockholders of Registrable Securities being sold or the underwriters, if any, reasonably request in order to do business expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares);
(ix) make available for inspection on a confidential basis by any seller, any underwriter participating in any jurisdiction where it is not then so qualifieddisposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such seller or underwriter (Bin each case after reasonable prior notice), all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply on a confidential basis all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement and cause the Company's chief executive officer and/or chief financial officer to be available upon reasonable request and at reasonable times to meet with underwriters and potential investors in connection with such Registration Statement;
(x) take permit any action holder of Registrable Securities, which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company within the meaning of Section 15 of the Securities Act, to participate in the preparation of such registration or comparable statement and to permit the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included, provided that would subject such material shall be furnished under such circumstances as shall cause it to general service be subject to the indemnification provisions provided pursuant to Section 6.7 (b) hereof;
(xi) in the event of process the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction, the Company will use its best efforts promptly to obtain the withdrawal of such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.order;
(ixii) Cooperate if requested by the managing underwriter or underwriters or any holder of Registrable Securities in connection with any sale pursuant to a Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information relating to such underwriting as the managing underwriter or underwriters or such holder reasonably requests to be included therein, and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such Prospectus supplement or post-effective amendment;
(xiii) cooperate with the Holders of Stockholders holding Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (bearing any such restrictive legends as may be required by law) representing Registrable Securities to be soldsold under such registration, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders such Stockholders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.request;
(jxiv) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment use its best efforts to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for cause the Registrable Securities to be registered with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all or approved by such other actions governmental agencies or authorities within the United States and having jurisdiction over the Company as are may reasonably requested by be necessary to enable the managing underwriter seller or underwriters in order to expedite sellers thereof or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm consummate the same if and when requested; disposition of such Registrable Securities;
(iixv) use reasonable its best efforts to obtain opinions obtain:
(A) at the time of counsel to the Company and updates thereofeffectiveness of each registration, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain a "cold comfortcomfort letter" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, covering such letters to be in customary form and covering matters of the type customarily covered in by "cold comfortcomfort letters" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of Stockholders holding a majority of the Registrable Securities covered by such registration and the underwriters reasonably request; and
(B) at the time of any underwritten sale pursuant to a Registration Statement, a "bring-down comfort letter", dated as of the date of such sale, from the Company's independent certified public accountants covering such matters of the type customarily covered by "cold comfort letters" as the Stockholders holding a majority of the Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.reasonably request;
(mxvi) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriteruse its best efforts to obtain, at the offices where normally kepttime of effectiveness of each Registration Statement and at the time of any sale pursuant to each registration, during reasonable business hoursan opinion or opinions, all financial favorable in form and other records, pertinent corporate documents and properties scope to the Stockholders holding a majority of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential Registrable Securities covered by such Personregistration, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal from counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.customary form; and
(nxvii) Comply otherwise comply with all applicable rules and regulations of the SEC Commission, and make generally available to its security holders earnings statements satisfying the provisions of Stockholders (as contemplated by Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) an earnings statement satisfying the provisions of Rule 158 under the Securities Act no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-the twelve month period if such period is a fiscal year) (i) commencing at beginning with the end first month of any the Company's first fiscal quarter in commencing after the effective date of the Registration Statement, which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firstatement shall cover said twelve month period.
Appears in 2 contracts
Sources: Stockholders Agreement (Heritage Property Investment Trust Inc), Stockholders Agreement (Heritage Property Investment Trust Inc)
Registration Procedures. In connection with the Company’s registration obligations of hereunder, the Company with respect shall:
(a) Not less than five Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with furnish to the SEC as soon as practicable each Holders owning Registrable Securities registered under such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, registered thereunder shall reasonably object in good faith, provided that the Company is notified of such objection in writing unless failure to file any no later than five Trading Days after such amendment or supplement would involve a violation Holders have been so furnished copies of the Securities Act or other applicable lawsuch documents.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and a Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyapplicable Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to such Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects during the applicable Effectiveness Period with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the Holders’ intended methods of disposition set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Securities to be sold as promptly as reasonably possible (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of a Registration Statement and whenever the Commission comments in writing on a Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of Registration Statement for amendments or supplements to such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus such Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, ; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any eventevent of which the Company has knowledge as a result of which a Prospectus, the existence of any condition or information becoming known that requires the making of any changes as then in such Registration Statementeffect, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain contains any untrue statement of a material fact or omit omits 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon promptly as reasonably practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement registering Registrable Securities held by such Holder and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested in writing by such Person, and all exhibits to the extent requested by such Person in writing (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the applicable Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested in writing by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the applicable Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the applicable Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither such Registration Statement nor the purchasers of Registrable Securities being sold thereunder, such Prospectus included therein will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities Holders in accordance with certificates for such securities in a form eligible for deposit with DTC and clauses (ii) provide a CUSIP number for through (v) of Section 3(c) above to suspend the use of the use of any Prospectus until the requisite changes to such securities.
(l) Enter into an underwriting agreement in formProspectus have been made, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by then the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition Holders shall suspend use of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Prospectus. The Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) will use its commercially reasonable efforts to obtain opinions ensure that the use of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as a Prospectus may be reasonably requested by underwriters; (iiiresumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) use reasonable efforts to obtain "cold comfort" letters and updates thereof from suspend the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders availability of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect applicable Prospectus, subject to all parties to be indemnified the payment of liquidated damages pursuant to such agreement. The above shall Section 2(b), for a period not to exceed 60 Trading Days (which need not be done at each closing under such underwriting agreement, or as and to the extent required thereunderconsecutive days) in any 12 month period.
(mj) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating Comply in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each Holder, upon three Trading Days’ notice, to furnish to the Company a certified statement as to, among other things, the number of shares of Common Stock beneficially owned by such Holder and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act person that has voting and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if dispositive control over such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firShares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Verticalnet Inc), Registration Rights Agreement (Verticalnet Inc)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 under Section 2 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable a Shelf Registration Statement or Shelf Registration Statements on Form S-1 or S-3 or any other appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and use its best efforts to cause each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that before filing any such Shelf Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under with the Exchange Act that would be incorporated therein by reference)SEC, the Company shall, upon request, afford promptly shall furnish to the Initial Purchasers and counsel for the Holders of and for the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwritersInitial Purchasers (or, if anyapplicable, an opportunity to review separate counsel for the Holders) copies of all such documents proposed to be filed a and use its reasonable time prior best efforts to reflect in each such document when so filed with the SEC such comments as the Initial Purchasers or such counsel reasonably shall propose within three (3) Business Days of the delivery of such copies to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 Initial Purchasers and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement or Subsequent Shelf Registration Statement continuously effective for until the time periods prescribed herebyexpiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its best efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Shelf Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Notice Holders, the Initial Purchasers and counsel for the Holders of Registrable Securities, their counsel and for the managing underwriter or underwritersInitial Purchasers (or, if anyapplicable, promptly (but in any event within two (2separate counsel for the Holders) Business Days), and confirm such notice in writing, (i) when a any Prospectus, Prospectus or any prospectus supplement supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed, filed with the SEC and, with respect to a Shelf Registration Statement or any post-effective amendment, amendment or when the same has become effective been declared effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness of a Shelf Registration Statement under the Securities Act, without charge, one conformed copy of by the SEC or any other federal or state governmental authority for amendments or supplements to such Shelf Registration Statement or post-effective amendment including financial statements and schedules and exhibits)the related Prospectus or for additional information, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company or its legal counsel of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, (v) after the effective date of any Shelf Registration Statement filed pursuant to this Agreement of the happening occurrence of (but not the nature of or details concerning) a Material Event and (vi) of the determination by the Company that a post-effective amendment to a Shelf Registration Statement or a Subsequent Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its reasonable best efforts to prevent the issuance of, and, if issued, to obtain the withdrawal of any eventorder suspending the effectiveness of a Shelf Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide prompt notice to each Notice Holder and the Initial Purchasers of the withdrawal of any such order.
(e) If reasonably requested by the Initial Purchasers or any Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or a post-effective amendment to a Shelf Registration Statement such information as the Initial Purchasers, such Notice Holder or counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) shall determine to be required to be included therein by applicable law and make any required filings of such Prospectus supplement or such post-effective amendment; provided that the Company shall not be required to take any actions under this Section 3(e) that, in the written opinion of counsel for the Company, are not in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder, counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) and the Initial Purchasers, without charge, at least one (1) conformed copy of any Shelf Registration Statement and any 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 to the Company by such Notice Holder, such counsel or the Initial Purchasers).
(g) During the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) and the Initial Purchasers, in connection with any sale of Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and the Initial Purchasers may reasonably request; and the Company hereby consents (except during such periods that a Suspension Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf Registration Statement and the related Prospectus; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of proceedings with respect to any Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any condition fact as a result of which any Shelf Registration Statement shall contain any untrue statement of a material fact or information becoming known that requires omit to state any material fact required to be stated therein or necessary to make the making statements therein not misleading, or any Prospectus shall 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, or (C) the occurrence or existence of any changes in such Registration Statement, Prospectus or documents so pending corporate development (a “Material Event”) that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of any Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) or (C) above, subject to the next sentence, as promptly as practicable, prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement, it will conform in all material respects with Statement or a supplement to the requirements of the Securities Act related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and it will Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, subject to the Prospectusnext sentence, use its reasonable best efforts to cause it will conform in all material respects with to be declared effective as promptly as is practicable, and (ii) give notice to the requirements Notice Holders and counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) that the availability of the Shelf Registration Statement is suspended (a “Suspension Notice”) and, upon receipt of any Suspension Notice, each Notice Holder agrees not to sell any Registrable Securities Act pursuant to such Shelf Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and it has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, the Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viz) in the case of clause (C) above, as soon as, in the reasonable discretion of the Company's reasonable determination that a post- effective amendment to , such suspension is no longer appropriate. The period during which the availability of the Shelf Registration Statement would and any Prospectus may be appropriate.
suspended (dthe “Suspension Period”) Use every reasonable effort without the Company incurring any obligation to prevent pay liquidated damages pursuant to Section 2(e) shall not exceed thirty (30) days in any three (3) month period and an aggregate of sixty (60) days in any twelve (12) month period. The Effectiveness Period shall be extended by the issuance number of any order suspending days from and including the effectiveness date of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any giving of the Registrable Securities covered thereby for sale Suspension Notice to and including the date on which the Notice Holder received copies of the supplemented or amended Prospectus provided in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
clause (ei) If requested by the managing underwriter or underwriters, if anyabove, or the Holders of a majority of the Registrable Securities being sold date on which it is advised in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after writing by the Company that the Prospectus may be used, and has received notification copies of the matters to be incorporated in such prospectus supplement any additional or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents supplemental filings that are incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringProspectus.
(j) Upon the occurrence of any event contemplated Make available for inspection during normal business hours by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar representatives for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition Notice Holders of such Registrable Securities and any underwriters participating in any underwritten offering disposition pursuant to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Shelf Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreementany broker-dealers, or as attorneys and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant accountants retained by such representative of the Notice Holders or underwriter, at the offices where normally kept, during reasonable business hoursany such underwriters, all relevant financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the appropriate officers, directors and employees of the Company and the its subsidiaries of the Company to supply make available for inspection during normal business hours all relevant information in each case reasonably requested by such representatives for the Notice Holders, or any such Person underwriters, broker-dealers, attorneys or accountants in connection with such Registration Statementdisposition, in each case as is customary for similar “due diligence” examinations; provided, however, that all material non-public such persons shall, at the Company’s request, first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Personpersons and shall be used solely for the purposes of exercising rights under this Agreement, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of governmental or regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure filing of any information by such Person pursuant Shelf Registration Statement or the use of any Prospectus referred to clauses (iiin this Agreement) or necessary to defend or prosecute a claim brought against or by any such persons (e.g., to establish a “due diligence” defense), (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or failure to safeguard by any such Person, person or (iv) such information has been made generally becomes available to any such person from a source other than the publicCompany and such source is not bound by a confidentiality agreement or is not otherwise under a duty of trust to the Company, and provided that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the counsel referred to in Section 5.
(nk) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) 45 days after the end of any 12-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firfirst day of the first fiscal quarter of the Company commencing after the effective date of a Shelf Registration Statement, which statements shall cover said 12-month periods.
(l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of certificates represen
Appears in 2 contracts
Sources: Registration Rights Agreement (Bradley Pharmaceuticals Inc), Registration Rights Agreement (Bradley Pharmaceuticals Inc)
Registration Procedures. In connection with the obligations of (a) If and whenever the Company with respect is required to use commercially reasonable efforts to effect the registration of any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofRegistrable Securities under the Securities Act as provided in this Section 2, the Company shall, except shall as otherwise providedexpeditiously as reasonably practicable:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare prepare and file with the SEC such amendments and post- amendments, including post-effective amendments and/or replacement shelf registration statements, and supplements to the a Resale Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Resale Shelf Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus and to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then comply in force) promulgated under the Securities Act; and comply all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities subject thereto for a period ending on the representations and warranties of date on which all the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, Registrable Securities cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) Securities; promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to underwriters and Rockwell agree should be included therein relating to comply the plan of distribution with applicable law, (ii) respect to such Registrable Securities; and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment, ;
(ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and (iii) supplement or make amendments promptly provide Rockwell true and complete copies of all correspondence from and to the SEC relating to such Registration Statement.;
(fiii) Furnish furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel Rockwell and each underwriter, if any, without charge, as many of the securities being sold by Rockwell such number of conformed copies of such Resale Shelf Registration Statement and of each Prospectus amendment and supplement thereto, such number of copies of the prospectus contained in or deemed part of such Resale Shelf Registration Statement (including each form of preliminary prospectus and any summary prospectus) and each amendment or supplement thereto free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus other documents as Rockwell and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agentssuch underwriter, if any, may reasonably request in connection with order to facilitate the offering and public sale or other disposition of the Registrable Securities;
(iv) use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Common Stock) to be listed on each securities exchange on which shares of Common Stock are then listed;
(v) use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Prospectus Resale Shelf Registration Statement from and any amendment or supplement thereto.after a date not later than the effective date of such Resale Shelf Registration Statement;
(hvi) Prior enter into such agreements (including an underwriting agreement) in form, scope and substance as is customary in underwritten offerings of shares of common stock by an issuer similar to any offering the Company and use its commercially reasonable efforts to take all such other actions reasonably requested by Rockwell (including those reasonably requested by the lead managing underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten offering, (A) make such representations and warranties to register or qualify, Rockwell and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, with respect to the business, management, financial statements and their respective prospects of the Company and its subsidiaries, and the Resale Shelf Registration Statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case in form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same if and when requested, and (B) deliver such documents and certificates as reasonably requested by Rockwell, its counsel and the lead managing underwriter(s), if any, to evidence the continued accuracy of the representations and warranties made pursuant to sub-clause (A) and to evidence compliance with any customary covenants and satisfaction of any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(vii) in connection with an underwritten offering, use commercially reasonable efforts to obtain for the registration or qualification underwriter(s) (or exemption from A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such registration or qualificationother matters as may be reasonably requested by such underwriters, and (B) of, such Registrable Securities for offer ”comfort” letters and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, updates thereof (or, in the event case of any such Person which does not satisfy the conditions for receipt of a non-“comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such Resale Shelf Registration Statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offeringofferings;
(viii) make available for inspection by Rockwell, any underwriter participating in any disposition pursuant to any Registration Statement, and any attorney, accountant or other agent or Representative retained in connection with such offering by Rockwell or each such underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise due diligence in connection with such Registration Statement, and cause the Holders of a majority officers, directors and employees of the Registrable Securities may request; providedCompany and its subsidiaries to supply all information in each case reasonably requested by any such Representative, howeverunderwriter, that where Registrable Securities are offered other than through an underwritten offeringattorney, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each agent or accountant in connection with such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyRegistration Statement; provided, however, that the Company will shall not be required to provide any information under this Section 2.7(a)(viii) to the extent that either (A1) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service the Company has obtained confidential treatment of process in any such jurisdiction where it is not then so subject information from the SEC or (C2) become subject the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless, with respect to taxation clause (1) or (2), Rockwell enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that Rockwell agrees that it will, upon learning that disclosure of such Records is sought in any a court of competent jurisdiction where it is not then so subject.or by another Governmental Authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to the extent practicable seeking to prevent disclosure of the Records deemed confidential;
(iix) Cooperate with the Holders of Registrable Securities as promptly as practicable notify in writing Rockwell and the managing underwriter or underwriters, if any, to facilitate of the timely preparation and delivery following events: (A) the filing of certificates representing Registrable Securities to be soldthe Resale Shelf Registration Statement, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as amendment thereto, the managing underwriter prospectus or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a prospectus supplement related thereto or post-effective amendment to the Resale Shelf Registration Statement and/or replacement shelf registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the Resale Shelf Registration Statement or a supplement any post-effective amendment thereto and/or replacement shelf registration statement, when the same has become effective; (B) the receipt of any written comments from the SEC or any request by the SEC or any other U.S. or state Governmental Authority for amendments or supplements to the Resale Shelf Registration Statement or the prospectus or for additional information; (C) when the Resale Shelf Registration Statement or any amendment thereto becomes effective; (D) the issuance by the SEC of any stop order suspending the effectiveness of the Resale Shelf Registration Statement or the initiation of any proceedings by any Person for that purpose; (E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (F) if at any time the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by Section 2.7(a)(vi) cease to be true and correct in any material respect; and (G) upon the happening of any event that makes any statement made in such Resale Shelf Registration Statement or related Prospectus prospectus or any document incorporated or deemed to be incorporated therein by referencereference untrue in any material respect or that requires the making of any changes in such Resale Shelf Registration Statement, and, subject to Section 4(a) hereof, file such with the SEC prospectus or documents so that, as thereafter delivered to in the purchasers case of Registrable Securities being sold thereunderthe Resale Shelf Registration Statement, such Prospectus it will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain 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.; provided, in the case of clause (G), that such notice need not include the nature or details concerning such event;
(kx) Prior use commercially reasonable efforts to obtain the effective date withdrawal of a any order suspending the effectiveness of such Resale Shelf Registration Statement, or the lifting of any suspension of the qualification (ior exemption from qualification) provide the registrar for of any of the Registrable Securities with certificates for sale in any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such securities purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (ix) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a form eligible for deposit with DTC and (ii) provide a CUSIP number for general consent to service of process in any such securities.jurisdiction;
(lxi) Enter into an underwriting agreement in form, scope cooperate with Rockwell and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing each underwriter or underwriters agent participating in order to expedite or facilitate the registration or disposition of such Registrable Securities and their respective counsel in connection with any underwritten offering filings required to be made of with the Registrable Securities in accordance with this AgreementFinancial Industry Regulatory Authority, and in such connection, Inc.;
(ixii) make such representations and warranties to the underwriter or underwriters, with respect to the business have appropriate officers of the Company prepare and make presentations at a reasonable number of “road shows” and before analysts and rating agencies, as the subsidiaries of the Companycase may be, and other information meetings reasonably organized by the Registration Statementunderwriters, Prospectus and documents, take other actions to obtain ratings for any Registrable Securities (if any, incorporated or deemed they are eligible to be incorporated by reference therein, in each case, in form, substance rated) and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) otherwise use its commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters cooperate as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement Rockwell and the managing underwriter or underwriters or agentsunderwriter(s) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreementin the offering, or as marketing and to the extent required thereunder.
(m) Make available for inspection by a representative selling of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information the scheduling of any such “road shows” and other meetings shall be kept confidential not unduly interfere with the normal operations of the business of the Company;
(xiii) if reasonably requested by such Personcounsel to Rockwell, except to the extent that (i) promptly incorporate in a prospectus supplement or post-effective amendment to the disclosure of Resale Shelf Registration Statement such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company reasonably agrees (upon advice of the potential disclosure of any information by such Person pursuant counsel) is required to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering be included therein and (ii) if not sold make all required filings of such prospectus supplement or such post-effective amendment promptly after the Company has received notification of the matters to an underwriter or to underwriters be incorporated in such an offering, commencing on prospectus supplement or post-effective amendment and has agreed to their inclusion in the firResale Shelf Registration Statement; and
(xiv) take all other actions reasonably requested by Rockwell or the lead managing underwriter(s) to effect the intent of this Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Rockwell Automation Inc), Registration Rights Agreement (PTC Inc.)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 under Section 2 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable a Shelf Registration Statement or Shelf Registration Statements on Form S-3 or any other appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that before filing any such Shelf Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under with the Exchange Act that would be incorporated therein by reference)SEC, the Company shall, upon request, afford promptly shall furnish to the Holders of and counsel for the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Holders copies of all such documents proposed to be filed which documents (other than a reasonable time prospectus supplement filed solely to update the selling stockholder information in the Prospectus) will be subject to the review of such counsel for a period of no less than ten Business Days prior to the proposed initial filing thereof. The of the Shelf Registration Statement or any post-effective amendment thereto or no less than three Business Days prior to the filing of a pre-effective amendment to the Shelf Registration Statement, and the Company shall will not file any the Shelf Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant other than documents incorporated by reference) to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by which such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, counsel shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of within three Business Days after the Securities Act or other applicable lawreceipt thereof.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective for until the time periods prescribed herebyexpiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Shelf Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Notice Holders, the Purchasers and counsel to the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (i) when a any Prospectus, Prospectus or any prospectus supplement supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed, filed with the SEC and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness of the Initial Shelf Registration Statement under the Securities Act, without charge, one conformed copy of such by the SEC or any other federal or state governmental authority for amendments or supplements to any Shelf Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, (v) after the effective date of any Shelf Registration Statement filed pursuant to this Agreement of the happening occurrence of (but not the nature of or details concerning) a Material Event and (vi) of the determination by the Company that a post-effective amendment to a Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its reasonable best efforts to prevent the issuance of, and, if issued, to obtain the withdrawal of any eventorder suspending the effectiveness of a Shelf Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide prompt notice to each Notice Holder and the Purchasers of the withdrawal of any such order.
(e) If requested by the Purchasers or any Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to a Shelf Registration Statement such information as the Purchasers or such Notice Holder shall, on advice from counsel, determine to be required to be included therein by applicable law and make any required filings of such Prospectus supplement or such post-effective amendment; provided that the Company shall not be required to take any actions under this Section 3(e) that, on advice from counsel for the Company, the Company determines would not be in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder, counsel for the Holders and for the Purchasers, without charge, at least one conformed copy of the Shelf Registration Statement and any amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, which obligation shall be deemed satisfied if such information is available through ▇▇▇▇▇ or on or through the Company's website.
(g) During the Effectiveness Period, deliver to each Notice Holder, the Purchasers and counsel for the Holders, in connection with any sale of Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and the Purchasers may reasonably request; and the Company hereby consents (except during such periods that a Suspension Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); and prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder's offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf Registration Statement and the related Prospectus; provided that the Company will not be required to (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 Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any condition fact as a result of which any Shelf Registration Statement shall contain any untrue statement of a material fact or information becoming known that requires omit to state any material fact required to be stated therein or necessary to make the making statements therein not misleading, or any Prospectus shall 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, or (C) the occurrence or existence of any changes in such Registration Statement, Prospectus or documents so pending corporate development (a "MATERIAL EVENT") that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) or (C) above, subject to the next sentence, as promptly as practicable, prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement, it will conform in all material respects with Statement or a supplement to the requirements of the Securities Act related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and it will Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will such Prospectus does 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 (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, subject to the next sentence, use its reasonable best efforts to cause it to be declared effective as promptly as is practicable, and (ii) give notice to the Notice Holders and counsel for the Holders and for the Purchasers (or, if applicable, separate counsel for the Holders) that the availability of the Shelf Registration Statement is suspended (a "SUSPENSION NOTICE") and, upon receipt of any Suspension Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to such Shelf Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (g) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, the Shelf Registration Statement does not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus does not contain any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viz) in the case of clause (C) above, as soon as, in the reasonable discretion of the Company's reasonable determination that a post- effective amendment to , such suspension is no longer appropriate. The period during which the availability of the Shelf Registration Statement would and any Prospectus may be appropriate.
suspended (dthe "SUSPENSION PERIOD") Use every reasonable effort without the Company incurring any obligation to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pay liquidated damages pursuant to Section 2.1 hereof), (i2(e) promptly incorporate shall not exceed 30 days in a prospectus supplement or postany three-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such postmonth period and 90 days in any 12-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may requestmonth period; provided, however, that where Registrable Securities are offered other than through an underwritten offeringif the use of the Shelf Registration Statement or any Prospectus is suspended by the Company pursuant to clause (C) above and the subject Material Event relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede the Company's ability to consummate such transaction or cause the Company to violate any non-disclosure agreement or confidentiality agreement in any contract relating to such transaction, the Company agrees may extend a Suspension Period from 30 days to cause its counsel to perform blue sky investigations 45 days.
(j) Make available for inspection during normal business hours by representatives for the Notice Holders of such Registrable Securities, and file registrations any investment banks, attorneys and qualifications required to be filed pursuant to this Section 4(h); keep each accountants retained by such registration or qualification (or exemption therefrom) effective during the Effectiveness Period Notice Holders, all relevant financial and do any other records and all other acts or things necessary or advisable to enable the disposition in such jurisdictions pertinent corporate documents and properties of the securities covered therebyCompany and its subsidiaries, and cause the appropriate officers, directors and employees of the Company and its subsidiaries to make available for inspection during normal business hours all relevant information reasonably requested by such representatives for the Notice Holders, or any such investment banks, attorneys or accountants in connection with such disposition, in each case as is customary for similar "due diligence" examinations; provided, however, that such persons shall, at the Company's request, first agree in writing with the Company will not that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (Aii) qualify disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Shelf Registration Statement or the use of any Prospectus referred to in this Agreement), (iii) such information becomes generally available to do business in the public other than as a result of a disclosure or failure to safeguard by any jurisdiction where it such person or (iv) such information becomes available to any such person from a source other than the Company and such source is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it bound by a confidentiality agreement or is not then so subject or (C) become subject otherwise under a duty of trust to taxation in any jurisdiction where it is not then so subjectthe Company, and provided that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders.
(ik) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to be solda Shelf Registration Statement, which certificates shall not bear any restrictive legends whatsoever legends, and shall cause such Registrable Securities to be registered in such names as such Notice Holder may request in writing at least three Business Days prior to any sale of such Registrable Securities.
(l) Provide the Trustee and the transfer agent for the Common Stock with certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) 45 days after the end of any 12-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firfirst day of the first fiscal quarter of the Company commencing af
Appears in 2 contracts
Sources: Registration Rights Agreement (Integrated Electrical Services Inc), Purchase Agreement (Integrated Electrical Services Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company hereunder with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofStatement, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than five (but in any event on or 5) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto supplement thereto, (only for registrations pursuant to Section 2.1 hereofi) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the applicable Holders of the Registrable Securities covered by and to counsel to such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Holders (“Holder Counsel”) copies of all such documents proposed to be filed and (ii) cause the Company’s officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any such Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any related Prospectus, amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by to be included in such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, registration shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bi) Prepare and file with the SEC such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period in the case of a Shelf Registration Statement, and until the end of the related offering in the case of any other Registration Statement, and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, to any comments received from the SEC with respect to any Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders and Holder Counsel true and complete copies of all correspondence from and to the SEC relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the applicable Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel Securities to be sold pursuant to a Registration Statement and the managing underwriter or underwriters, if any, Holder Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one (1) Trading Day thereafter, of any of the following events: (i) when the SEC notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or post-effective amendment has been filed, and, with respect Registration Statement; (ii) the SEC comments in writing on any Registration Statement (in which case the Company shall deliver to each such Holder a copy of such comments and of all written responses thereto); (iii) any Registration Statement or any post-effective amendment, when amendment thereto is declared effective; (iv) the same has become effective (including in such notice SEC or any other Federal or state governmental authority requests any amendment or supplement to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), related Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of related Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, related Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by Use its commercially reasonable efforts to obtain all other approvals, consents, exemptions or authorizations for the managing underwriter Company from such governmental agencies or underwriters, if any, or authorities as may be reasonably necessary to enable the applicable Holders of a majority of to consummate the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings disposition of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration StatementRegistrable Securities.
(f) Furnish to each applicable Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, ; including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits excluding those previously furnished or incorporated by reference)) promptly after the filing of such documents with the SEC.
(g) Deliver Promptly deliver to each applicable Holder of Registrable Securities, their counsel and each underwriter, if anyHolder Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) related to a Registration Statement and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) In the time and manner required by each Trading Market, if at all, (i) prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as reasonably practicable thereafter; (iii) to the extent available to the Company, provide to the Holder evidence of such listing; and (iv) maintain the listing of such Registrable Securities on each such Trading Market.
(i) Prior to any public offering of Registrable SecuritiesSecurities pursuant to a Registration Statement, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Holder Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in the case of a Shelf Registration Statement, and until the offering is completed in the case of any other Registration Statement, and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subjectby a Registration Statement.
(ij) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear be free, to the extent permitted by the Stockholders Agreement and any other agreement between the applicable Holder and the Company, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jk) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above5(c)(vii), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the such a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither such Registration Statement nor its related Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(kl) Prior Cooperate with any due diligence investigation undertaken by the Holders in connection with the sale of Registrable Securities pursuant to a Registration Statement, including, without limitation, by making available any documents and information.
(m) If Holders of a majority of the Registrable Securities being offered pursuant to a Registration Statement select underwriters (whether on a firm commitment or best efforts basis) for the offering, the Company shall enter into and perform its obligations under an underwriting (or similar) agreement, in usual and customary form, including, without limitation, by providing customary legal opinions, comfort letters and indemnification and contribution obligations.
(n) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering.
(o) Use commercially reasonable efforts to obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such Registration Statement, in each case dated the effective date of a such Registration StatementStatement (and if such registration involves an underwritten offering, (i) provide dated the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made date of the Registrable Securities in accordance with this Agreementclosing under the underwriting agreement), and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities are customarily covered by such Registration Statement opinions and the managing underwriter or “cold comfort” letters delivered to underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above in underwritten public offerings, which opinion and letter shall be done at each closing under such underwriting agreement, or as and reasonably satisfactory to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securitiessole or lead managing underwriter, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicHolders.
(np) Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement.
(q) Comply with all applicable rules and regulations of the SEC and make generally available SEC.
(r) The Company shall not be required to its security holders earnings statements satisfying deliver any document pursuant to any provision of this Section 5 to any Holder that is not selling Registrable Securities under the provisions applicable Registration Statement. The Company shall also not be required to deliver any document pursuant to any provision of this Section 11(a) 5, other than Section 5(g), to any Holder that proposes to sell Registrable Securities with less than $500,000 in aggregate offering price to the public under the Registration Statement (based on the last sale price per Common Stock on the Trading Market on the Trading Day immediately preceding the date of the Securities Act and Rule 158 thereunder Purchaser Request or Registration Request, as the case may be).
(s) The Company shall not identify any Holder as an underwriter in any public disclosure or filing with the SEC or any similar rule promulgated under Trading Market without the Securities Actprior written consent of such Holder. If the Company is required by law to identify a Holder as an underwriter in any public disclosure or filing with the SEC or any Trading Market, it must notify such Holder in writing in advance (the “Identification Notice”) no later than forty-five (45) days after and such Holder shall have the end of any 12-month period (or ninety (90) days after the end of any 12-month period if option, in its sole discretion, to consent to such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to identification as an underwriter or to underwriters elect to have its Registrable Securities be deemed Cut Back Shares solely for the purposes of such Registration Statement and removed from such Registration Statement. If the Holder does not make such election within five (5) Business Days of such Holder’s receipt of the Identification Notice, such Holder shall be deemed to have elected to have its Registrable Securities be deemed to be Cut Back Shares. The Company shall not be obligated to file a new Registration Statement as a result of any such Cut Back Shares. Except as provided in a firm commitment or best efforts underwritten offering and (ii) if not sold to this Section 5(t), any Holder being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement.
(t) Use its commercially reasonable efforts to take all other steps necessary to expedite or to underwriters in such an offering, commencing on facilitate the firregistration and disposition of the Registrable Securities contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ares Corporate Opportunities Fund II, L.P.), Registration Rights Agreement (Stream Global Services, Inc.)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement registration pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Agreement, the Company shall use its commercially reasonable efforts to effect or cause to be effected the registration of the Registrable Shares under the Securities Act to permit the sale of such Registrable Shares by the Holder or Holders in accordance with this Agreement and the Holder’s or Holders’ intended method or methods of distribution, and the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or i) at least ten (10) Business Days prior to the date filing, provide notice of filing thereof required under this Agreement) and cause such its intention to file a Resale Registration Statement to become effective and remain effective as provided herein; providedthe relevant underwriters (each, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits“Review Party”), (ii) at least five (5) Business Days prior to filing, provide a copy of the issuance by the SEC of any stop order suspending the effectiveness of such Resale Registration Statement or of any order preventing or suspending to the use of any preliminary prospectus or the initiation or threatening of any proceedings Review Parties and Review Counsel for that purpose, review and comment; (iii) if at any time when as promptly as practicable, prepare and file with the Commission, as specified in this Agreement, a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreementResale Registration Statement(s), which Resale Registration Statement(s) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to shall (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform comply as to form in all material respects with the requirements of the Securities Act and the applicable form and include all financial statements required by the Commission to be filed therewith and (B) be reasonably acceptable to the Review Parties, their counsel and Review Counsel; (iv) at least three (3) Business Days prior to filing, provide a copy of any amendment or supplement to the Review Parties, their counsel and Review Counsel for review and comment; (v) promptly following receipt from the Commission, provide to the Review Parties, their counsel and Review Counsel copies of any comments made by the Staff of the Commission relating to such Resale Registration Statement and of the Company’s responses thereto for review and comment; and (vi) use its commercially reasonable efforts to cause such Resale Registration Statement to become effective as soon as practicable after filing and to remain effective, subject to Section 5 hereof, until the earlier of (A) such time as all Registrable Shares covered thereby have been sold in accordance with the method or methods of distribution of such Registrable Shares contemplated by the Resale Registration Statement; (B) there are no Registrable Shares outstanding; provided, however, that the Company shall not be required to cause the IPO Registration Statement to remain effective for any period longer than 180 days following the effective date of the IPO Registration Statement (subject to extension as provided in Section 5(c) hereof); or (C) the first anniversary of the effective date of such Resale Registration Statement (subject to extension as provided in Section 5(c) hereof and the condition that the Registrable Shares have been transferred to an unrestricted CUSIP and are listed or included on a National Securities Exchange pursuant to Section 4(o) of this Agreement), and the counsel to the Company shall have delivered a legal opinion to the Review Parties in form and substance reasonably acceptable to the Review Parties, their counsel and Review Counsel that the Registrable Shares can be sold under Rule 144 without limitation as to manner of sale, volume or current public information; provided, further, that if the Company has an effective Shelf Registration Statement on Form N-2 (or other form then available to the Company) under the Securities Act and becomes eligible to use Form N-2 to make offerings as described in General Instruction I.B of Form S-3 or such other short-form registration statement form under the Securities Act, the Company may, upon thirty (30) Business Days prior written notice to all Holders, register any Registrable Shares registered but not yet distributed under the effective Shelf Registration Statement on such a short-form Shelf Registration Statement and, once the short-form Shelf Registration Statement is declared effective, de-register such shares under the previous Resale Registration Statement or transfer the filing fees from the previous Resale Registration Statement (such transfer pursuant to Rule 429, if applicable) unless any Holder registered under the initial Shelf Registration Statement notifies the Company within fifteen (15) Business Days of receipt of the Company notice that such a registration under a new Resale Registration Statement and de-registration of the initial Shelf Registration Statement would interfere with its distribution of Registrable Shares already in progress, in which case, the Company shall delay the effectiveness of the short-form Resale Registration Statement and termination of the then-effective initial Resale Registration Statement or any short-form Resale Registration Statement for a period of not less than thirty (30) days from the date that the Company receives the notice from such Holders requesting a delay;
(b) subject to Section 4(h) hereof, as promptly as practicable (i) prepare and file with the Commission such amendments and post-effective amendments to each such Resale Registration Statement as may be necessary to keep such Resale Registration Statement effective in accordance with SEC Guidance for the period described in Section 4(a) hereof; (ii) cause each Prospectus contained therein to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant SEC Guidance; and (iii) comply with SEC Guidance with respect to the disposition of all securities covered by each Resale Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof;
(c) furnish to the Holders, 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 may reasonably request (including, without limitation, copies of all correspondence with the Commission and any other governmental authority in connection with the Resale Registration Statement), in order to facilitate the public sale or other disposition of the Registrable Shares, and hereby does consent to the use of such Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the offering and sale of the Registrable Shares covered by any such Prospectus, subject to Section 5 hereof;
(d) use its commercially reasonable efforts to register or qualify, or obtain exemption from registration or qualification for, all Registrable Shares by the time the applicable Resale Registration Statement is declared effective by the Commission under all applicable state securities or “blue sky” laws of such jurisdictions as the Review Parties or any Holder of Registrable Shares covered by a Resale Registration Statement shall reasonably request in writing, keep each such registration or qualification or exemption effective during the period such Resale Registration Statement is required to be kept effective pursuant to Section 4(a) and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it will would not contain otherwise be required to qualify but for this Section 4(d) and except as may be required by SEC Guidance, (ii) subject itself to taxation in any such jurisdiction or (iii) submit to the general service of process in any such jurisdiction;
(i) notify the Review Parties and each Holder promptly and, if requested by any Review Party or any Holder, confirm such advice in writing (A) when a Resale Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (B) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of a Resale Registration Statement or the initiation of any Proceeding for that purpose, (C) of any request by the Commission or any other federal, state or foreign governmental authority for (1) amendments or supplements to a Resale Registration Statement or related Prospectus or (2) additional information, and (D) of the happening of any event during the period a Resale Registration Statement is effective as a result of which such Resale Registration Statement or the related Prospectus or any document incorporated by reference therein contains any untrue statement of a material fact or omit omits 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit misleading (which information shall be accompanied by an instruction to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending suspend the use of a the Prospectus or suspending until the qualification requisite changes have been made); and (or exemption from qualificationii) of any of at the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal request of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwritersHolder, if any, or the Holders promptly to furnish to such Holder a reasonable number of copies of a majority of the Registrable Securities being sold in connection with supplement to or an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers purchaser of Registrable Securities being sold thereundersuch securities, such Prospectus will 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, in the light of the circumstances under which they were made, not misleading.;
(f) use its commercially reasonable efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order enjoining or suspending the use or effectiveness of a Resale Registration Statement or suspending the qualification of (or exemption from qualification of) any of the Registrable Shares for sale in any jurisdiction, as promptly as practicable;
(g) upon request, promptly furnish to each requesting Holder of Registrable Shares covered by a Resale Registration Statement, without charge, one conformed copy of such Resale Registration Statement and any post-effective amendment or supplement thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); provided, such conformed copy may be delivered electronically in pdf form;
(h) except as provided in Section 5 hereof, upon the occurrence of any event contemplated by Section 4(e)(i)(D) hereof, use its commercially reasonable efforts promptly to prepare a supplement or post-effective amendment to a Resale Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) if requested by the Review Parties, or any Holders of Registrable Shares being sold in connection with such offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the representative of the underwriters, if any, or such Holders indicate relates to them or that they reasonably request be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(j) in the case of an Underwritten Offering, use its commercially reasonable efforts to furnish to each Holder of Registrable Shares covered by such Resale Registration Statement and the underwriters a signed counterpart, addressed to each such Holder and the underwriters, of (i) customary opinion and negative assurance letters of outside counsel for the Company, addressed to the underwriters, dated the date of each closing under the underwriting agreement, reasonably satisfactory to such Holder and the underwriters, and (ii) a “comfort” letter, addressed to the underwriters and the Board of Directors, dated the effective date of such Resale Registration Statement and the date of each closing under the underwriting agreement, signed by the independent public accountants who have certified the Company’s financial statements included in such Resale Registration Statement, covering substantially the same matters with respect to such Resale Registration Statement (and the Prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to underwriters in underwritten public offerings of securities and such other financial matters as such Holder and the underwriters may reasonably request;
(k) Prior to enter into customary agreements (including in the effective date case of a Registration Statementan Underwritten Offering, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope customary form and substance as is customary in underwritten offerings reasonably satisfactory to the Company) and take all such other actions as are reasonably requested by the managing underwriter or underwriters reasonable action in connection therewith in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made distribution of the Registrable Securities in accordance with this Agreement, and Shares included in such connectionResale Registration Statement and, (i) in the case of an Underwritten Offering, make such representations and warranties to the underwriter or underwriters, with respect Holders covered by such Resale Registration Statement and to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, underwriters in each case, in form, substance such form and scope as are customarily made by issuers to underwriters in underwritten offerings, offerings and confirm the same to the extent customary if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.;
(ml) Make make available for inspection by a representative representatives of the Holders and the representative of Registrable Securities being sold, any underwriter underwriters participating in any such disposition of Registrable Securities, if any, pursuant to a Resale Registration Statement and any attorney special counsel or accountant accountants retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hoursunderwriters, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the respective officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person representatives, the representative of the underwriters, counsel thereto or accountants in connection with such a Resale Registration Statement; provided, however, that all material non-public 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 kept confidential disclosed by such Personrepresentatives, except to representative of the extent that underwriters, counsel thereto or accountants unless (i) the disclosure of such records, documents or information is necessary or advisable to avoid or correct a misstatement or omission in the a Resale Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (such records, documents or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has have been generally made generally available to the public.; provided, further, that the representatives of the Holders and any underwriters will use commercially reasonable efforts, to the extent practicable, to coordinate the foregoing inspection and information gathering and not materially disrupt the Company’s business operations;
(m) use its commercially reasonable efforts (including, without limitation, seeking to cure any deficiencies cited by the exchange or market in the Company’s listing or inclusion application) to list or include all Registrable Shares on The New York Stock Exchange, Nasdaq Global Select Market or the Nasdaq Global Market, and to maintain such listing;
(n) Comply prepare and file in a timely manner all documents and reports required by the Exchange Act and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of the Exchange Act expires prior to the expiration of the effectiveness period of the Registration Statement as required by Section 4(a) hereof, the Company shall register the Registrable Shares under the Exchange Act and shall maintain such registration through the effectiveness period required by Section 4(a) hereof;
(o) provide one or more CUSIP numbers for all Registrable Shares, not later than the effective date of the Resale Registration Statement;
(p) (i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and Guidance, (ii) make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offeringstockholders, commencing on the firas soon as reasonably practicabl
Appears in 2 contracts
Sources: Registration Rights Agreement (Trinity Capital Inc.), Registration Rights Agreement (Trinity Capital Inc.)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement and subject to the provisions of Section 1, and pursuant to Sections 2.1, 2.2 and 2.6 hereof, thereto the Company shall, except shall as otherwise providedexpeditiously as reasonably practicable:
(a) Prepare prepare and file with the SEC as soon as practicable each such Commission a Registration Statement relating to the registration on Form S-3 or such other appropriate form under the Securities Act, which form shall be available for the sale or distribution of the Registrable Securities being sold in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the Commission to be filed therewith (but including, if required by the Securities Act or any regulation thereunder, financial statements of any Subsidiary (as defined in Rule 405 under the Securities Act) of the Company which shall have guaranteed any indebtedness of the Company), cooperate and assist in any event on or prior filings required to be made with the date of filing thereof required under this Agreement) NASD and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered approved by such Registration Statement, their counsel and governmental agencies or authorities as may be necessary to enable the managing underwriter or underwriters, if any, an opportunity selling holders to review copies consummate the disposition of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.Securities;
(b) Prepare prepare and file with the SEC Commission such amendments and post- post-effective amendments to the such Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyapplicable Registration Period; in the case of any Registration Statement filed pursuant to Rule 415 under the Securities Act, cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; , to add any permitted assignee or transferee of any Investor as a "selling stockholder" therein and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner, and to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such prospectus as so supplemented.Registration Statement or supplement to the Prospectus;
(c) Notify advise the Holders holders of the Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Securities promptly (but and in any event within two (2one Business Day, by e-mail, fax or other type of communication) Business Days)and, and if requested by such Persons, confirm such notice advice in writing, :
(i) when a any Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filed, and, with respect to a such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective effective;
(including ii) of the existence of any fact and the happening of any event that makes any statement of a material fact made in such notice a written statement Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any Holder may, upon request, obtain, without charge, one conformed copy of additions to or changes in such Registration Statement or post-effective amendment including financial the Prospectus in order to make the statements and schedules and exhibits), therein not misleading; and
(iiiii) of the issuance by the SEC Commission of any stop order or other order suspending the effectiveness of such Registration Statement, or any order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Registrable Securities under state securities or "blue sky" laws. If at any time the Company shall receive any such stop order suspending the effectiveness of such Registration Statement Statement, or any such order from a state securities commission or other regulatory authority, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(d) deliver to each holder of the Registrable Securities, without charge, as many copies of any order preventing Prospectus and any amendment or suspending supplement thereto as such Person may reasonably request; the Company consents to the use of such Prospectus and any preliminary prospectus amendment or supplement thereto by each of the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales holders of the Registrable Securities in connection with the representations offering and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification sale or exemption from qualification of the Registration Statement or any distribution of the Registrable Securities covered thereby for offer by such Prospectus or sale in any jurisdictionamendment or supplement thereto;
(e) prior to any public offering of Registrable Securities, or (B) reasonably cooperate with the initiation of any proceeding for such purpose, (v) holders of the happening Registrable Securities and their respective counsel in connection with the registration and qualification of the Registrable Securities under the securities or "blue sky" laws of such jurisdictions as the holders of the Registrable Securities may reasonably request in writing and do any event, and all other acts or things reasonably necessary or advisable to enable the existence disposition in such jurisdictions of any condition or information becoming known that requires the making of any changes in Registrable Securities covered by such Registration Statement; provided, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
(f) use its reasonable best efforts to cause the Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be reasonably requested in writing by the seller or distributor thereof to consummate the disposition of such Registrable Securities;
(g) if any fact or event contemplated by clause (c)(ii) above shall exist or have occurred, prepare a supplement or post-effective amendment to such Registration Statement or related Prospectus or documents any document incorporated therein by reference or file any other required document so that, in as thereafter delivered to the case purchasers of Registrable Securities, such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause otherwise use its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable best efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) Commission;
(i) commencing use its reasonable best efforts to cause all applicable Registrable Securities to be listed on each securities exchange or market, if any, on which equity securities issued by the Company are then listed; and
(j) use its reasonable best efforts to take all other steps reasonably necessary to effect the registration of the applicable Registrable Securities contemplated hereby. It shall be a condition precedent to the obligations of the Company hereunder with respect to the registration of the Registrable Securities of a particular Investor that such Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably requested by the Company in connection with its obligations under this Agreement and shall execute such other documents in connection with such registration as the Company may reasonably request. Each Investor by such Investor's acceptance of the Registrable Securities agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Investor has notified the Company of such Investor's election to exclude all of such Investor's Registrable Securities from such Registration Statement. Each holder of the Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 2(c)(ii), or notice of a stop order or suspension described in Section 2(c)(iii), such holder shall forthwith discontinue disposition of Registrable Securities and cease to use the Prospectus in use under such Registration Statement. The Company shall, as promptly as practicable, provide each holder with copies of the supplemented or amended Prospectus contemplated by Section 2(g), or advise the holders in writing that the use of the Prospectus may be resumed, and promptly provide each holder with copies of any additional or supplemental filings which are incorporated by reference in the Prospectus. If so directed by the Company, each 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 any fiscal quarter in which the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If, pursuant to the terms of this Agreement, the Company gives notice to each holder of Registrable Securities its intention to remove from registration the Registrable Securities covered by the Registration Statement that have not been sold, each holder shall notify the Company promptly upon the receipt of such notice of the number of Registrable Securities that are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firregistered but remain unsold.
Appears in 2 contracts
Sources: Registration Rights Agreement (Navisite Inc), Registration Rights Agreement (Navisite Inc)
Registration Procedures. In connection with the obligations of the Company with respect Registration to any Registration Statement be effected pursuant to Sections 2.1the Resale Shelf Registration Statement, 2.2 and 2.6 hereofwhenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a takedown offering, Pubco shall use its reasonable best efforts to effect the Company shallregistration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, except and pursuant thereto Pubco shall as otherwise providedexpeditiously as reasonably possible:
(a) Prepare prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC Commission a registration statement, and all amendments and supplements thereto and related prospectuses as soon as practicable each may be necessary to comply with applicable securities laws, with respect to such Registration Statement (but in any event on or prior Registrable Securities and use its reasonable best efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement registration statement to become effective and remain effective as (provided herein; provided, however, that at least five (5) Business Days before filing any such Registration Statement a registration statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) prospectus or any amendments or supplements thereto (only for registrations pursuant thereto, Pubco shall furnish to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein counsel selected by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Applicable Approving Party copies of all such documents proposed to be filed a reasonable time prior filed, which documents shall be subject to the proposed filing thereof. The Company shall not file review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any Registration Statement stop order suspending the effectiveness of any registration statement or Prospectus the initiation of any proceedings for that purpose, (for registrations pursuant B) the receipt by Pubco or its counsel of any notification with respect to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders suspension of a majority the qualification of the Registrable Securities covered by such Registration Statement, their counsel, for sale in any jurisdiction or the managing underwriter initiation or underwritersthreatening of any proceeding for such purpose, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation and (C) the effectiveness of the Securities Act or other applicable law.each registration statement filed hereunder;
(bc) Prepare prepare and file with the SEC Commission such amendments and post- effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously registration statement effective for a period ending when all of the time periods prescribed hereby; cause securities covered by such registration statement have been disposed of in accordance with the related Prospectus to be supplemented 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 supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; 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, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such prospectus as so supplemented.registration statement;
(cd) Notify the Holders furnish to each seller of Registrable SecuritiesSecurities thereunder such number of copies of such registration statement, their counsel each amendment and supplement thereto, the managing 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 reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or underwriters, if any, promptly 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 (but in any event within two (2) Business Days), and confirm such notice in writing, provided that Pubco shall not be required to (i) when a Prospectus or qualify generally to do business in any prospectus supplement or post-effective amendment has been filed, and, with respect jurisdiction where it would not otherwise be required to a Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibitsqualify but for this Section 4(f), (ii) consent to general service of the issuance by the SEC of process in any stop order suspending the effectiveness of such Registration Statement jurisdiction or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if 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 by the Securities Act to be delivered in connection with sales of under the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) belowAct, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any eventevent 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 existence request of any condition such seller, Pubco promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or information becoming known that requires the making of any changes in amendment to such Registration Statement, Prospectus or documents prospectus so that, in as thereafter delivered to the case 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 Pubco 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 Pubco as shall be necessary to enable them to exercise their due diligence responsibility, and cause Pubco’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 Demand Registration Statement, it will conform (including any Shelf Registration) or Piggyback Registration hereunder complies in all material respects with the requirements of Securities Act, is filed in accordance with the Securities Act and it will 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 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and (vi) regulations of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.Commission;
(dn) Use every 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 Pubco to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to Pubco in writing, which in the reasonable effort to prevent 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 the Registration Statement a registration statement, or of any order suspending or preventing or suspending the use of a Prospectus any related prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby Common Stock included in such registration statement for sale in any jurisdiction, and, if any such order is issued, Pubco shall use its reasonable best efforts promptly to obtain the withdrawal of any such order as soon as practicable.order;
(ep) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant use its reasonable best efforts to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment cause such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment registration statement to be registered with or supplement thereto.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;
(hq) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the Holders holders of Registrable Securities covered by the registration statement and the managing underwriter or underwritersagent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities securities to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); sold under the registration statement and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriter underwriter, or underwritersagent, if any, or Holders such holders may reasonably request at least two Business Days prior to any sale request;
(r) cooperate with each holder of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested covered by the managing registration statement and each underwriter or underwriters agent participating in order to expedite or facilitate the registration or disposition of such Registrable Securities and their respective counsel in connection with any underwritten offering filings required to be made of the Registrable Securities in accordance with this AgreementFINRA;
(s) if such registration includes an underwritten public offering, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use its reasonable best efforts to obtain opinions of counsel to the Company a cold comfort letter from Pubco’s independent public accountants and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in "cold comfort" letters in connection such registration reasonably request;
(t) provide a legal opinion of Pubco’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 underwritten offerings 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 as reasonably requested of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and underwriters;
(ivu) if Pubco files an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Automatic Shelf Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, covering any underwriter participating in any such disposition of Registrable Securities, use its 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 any, and any attorney or accountant retained by such representative of Pubco does not pay the Holders or underwriter, filing fee covering the Registrable Securities at the offices where normally kepttime an Automatic Shelf Registration Statement is filed, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of pay such fee at such time or times as the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company Registrable Securities are to supply all information in each case reasonably requested by any such Person in connection with such Registration Statementbe sold; provided, however, that all material non-public information shall be kept confidential by such Person, except and
(w) subject to the extent that (iterms of Section 2(c) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the and Section 2(d), if an Automatic Shelf Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
outstanding for at least three (n3) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any fiscal quarter in which Registrable Securities are sold time when Pubco is required to an underwriter or to underwriters in re-evaluate its WKSI status Pubco determines that it is not a firm commitment or WKSI, use its reasonable best efforts underwritten offering to refile the registration statement on Form S-3 and keep such registration statement effective (iiincluding by filing a new Resale Shelf Registration or Shelf Registration, if necessary) if not sold during the period throughout which such registration statement is required to an underwriter or to underwriters in such an offering, commencing on the firbe kept effective.
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement (ARKO Corp.), Registration Rights and Lock Up Agreement (Haymaker Acquisition Corp. II)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event Commission on or prior to the date Filing Date, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of filing thereof required under this Agreement) Distribution substantially in the form of Exhibit A attached hereto), and cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before not less than three (3) Business Days prior to the filing any such of the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)supplement thereto, the Company shall, upon request, afford promptly shall (i) furnish to the Holders of the Registrable Securities covered by such Registration StatementSpecial Counsel, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless failure counsel to file any the Company determines in writing that such amendment or supplement would involve a violation of the Securities Act or other applicable lawobjection is without merit.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 business days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, Special Counsel as promptly as possible (but in any event within two (2) Business Days), and confirm such notice in writing, (iA) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filedto the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective, and after the effectiveness thereof: (including in such notice a written statement that i) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (ii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority in interest of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Securities, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment; provided, and however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (iii) supplement or make amendments addressed to such Registration Statementthe Holder's Special Counsel), violate applicable law.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anySpecial Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anythe Special Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, and the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the 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 soldsold pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any Holder may reasonably request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent, which authorize and direct the transfer agent to issue such Registrable Securities in a firm commitment underwritten public offeringwithout legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior Cause all Registrable Securities relating to such Registration Statement to be listed on NASDAQ and any other United States securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the Company are then listed as and when required pursuant to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesPurchase Agreement.
(l) Enter into an underwriting agreement Comply in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no not later than forty-five (45) 45 days after the end of any 123-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter furnish such information or to underwriters in a firm commitment or best efforts underwritten offering and (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not sold required by the Securities Act or any similar federal statute then in force) the deletion of the reference to an underwriter such Holder in any amendment or supplement to underwriters the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such an offeringProspectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") reasonably determines not to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, commencing on or (ii) there is a significant business opportunity (including, but not limited to, the firacquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 45 days in the aggregate during any 12 month period (each, a "Blackout Period").
Appears in 2 contracts
Sources: Investor Rights Agreement (Nexmed Inc), Investor Rights Agreement (Nexmed Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents excluding any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 5 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale of by the Holders of not less than 130% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interests of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicableProspectus.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence Section 3(d) above to permit suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to obtain suspend the availability of a protective order Registration Statement and Prospectus pursuant to clause (or waive vi) of Section 3(d), then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (if practicablevi) of Section 3(d), the Company shall not be required to the extent take such action is otherwise not inconsistent with, an impairment of or in derogation until such time as it shall determine that the continued availability of the rights Registration Statement and Prospectus is no longer not in the best interests of the Holder or any such PersonCompany. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 45 consecutive days or for multiple periods not to exceed 60 days in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled and any Event of Default that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Svi Solutions Inc), Registration Rights Agreement (Svi Solutions Inc)
Registration Procedures. In connection with the obligations ----------------------- registration of the Company with respect to any Registration Statement Registrable Securities or Exchange Securities pursuant to Sections 2.1, 2.2 2 and 2.6 3 hereof, the Company Registrants shall use their reasonable best efforts to effect such registration to permit the sale of such Registrable Securities or Exchange Securities in accordance with any permitted intended method or methods of disposition thereof, and pursuant thereto the Registrants shall, except as otherwise provided:
(a) Prepare prepare and file cause to be filed with the SEC as soon as practicable each such Commission a Registration Statement (but in any event on or prior to the date Registration Statements as prescribed by Sections 2 and 3 of filing thereof required under this Agreement) , and use their reasonable best efforts to cause each such Registration Statement to become effective and remain effective for the applicable period as provided herein; provided, however, that before filing any such (i) during the period in which the -------- ------- Initial Shelf Registration Statement or any Prospectus (is open for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)Restricted Persons, the Company shallRegistrants shall afford any Restricted Person which is a holder of Registrable Securities or Resale Securities and the Special Counsel, upon request, afford promptly such holder's written request to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if anyRegistrants, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior filed, and (ii) if such filing is pursuant to the proposed Section 3, before filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only thereto, the Registrants shall afford the Special Counsel for registrations pursuant to Section 2.1 hereof) if the Holders of a majority all holders of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure Statement an opportunity to file any review copies of all such amendment or supplement would involve a violation of the Securities Act or other applicable law.documents proposed to be filed;
(b) Prepare prepare and file cause to be filed with the SEC Commission such amendments and post- post-effective amendments to the each Shelf Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyapplicable period as provided herein; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC Commission promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.supplemented in accordance with the intended methods of disposition by the sellers of Registrable Securities covered thereby set forth therein;
(c) Notify the Holders promptly notify holders of Registrable Securities, their counsel and the managing underwriter or underwriters, Securities (i) if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writinga Shelf Registration Statement is filed pursuant to Section 3 hereof, (iii) 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 effective, (including in such notice a written statement that iii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits)the Prospectus or for additional information, (iiiv) of receipt by the Registrants of any notification with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or Prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (ivv) of the receipt by the Company Registrants of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the a Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (vvi) of the happening of any event, the existence of any condition or information becoming fact known that requires to the making of any changes Registrants which results in such Registration Statement, Statement or related Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any document incorporated therein by reference containing 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit omitting to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading (which notice may be accompanied by an instruction that such notice constitutes material non-public information and to suspend the use of the Prospectus until the requisite changes have been made, and (vi) which instruction shall require that such holders shall not communicate such material non-public information to any third party and shall not sell or purchase, or offer to sell or purchase, any securities of the Company's reasonable determination Registrants after receipt of such notice) and (vii) if the Registrants reasonably determine that the filing of a post- post-effective amendment to such Registration Statement would be appropriate.;
(d) Use every if a Shelf Registration Statement is filed pursuant to Section 3, use their reasonable effort efforts to prevent the issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, jurisdiction and, if any such order is issued, to use reasonable efforts to obtain the withdrawal of any such order as soon as practicable.at the earliest practicable moment;
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations Shelf Registration Statement is filed pursuant to Section 2.1 hereof)3, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish furnish to each Holder selling holder of Registrable Securities who so requests and to counsel for (at such holder's address set forth in the Holders of Registrable Securities and each managing underwriter, if any, Register) without charge, upon request, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits those incorporated by reference).;
(gf) Deliver if a Shelf Registration Statement is filed pursuant to Section 3, deliver to each Holder selling holder of Registrable Securities, their counsel and each underwriter, if any, Securities without charge, as many copies of each the Prospectus (including each form of preliminary prospectus) and each amendment or supplement thereto as such Persons persons may reasonably request; and, and subject to the last paragraph of this Section 45, the Company Registrants hereby consents consent to the use of such Prospectus and each amendment or supplement thereto by each of the Holders selling holders of Registrable Securities and the underwriter or underwriters or agentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(hg) Prior prior to any public offering of Registrable Securities, to register or qualify, and or cooperate with the Holders selling holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters selling holders reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the writing (provided that if Registrable Securities may request; provided, however, that where Registrable -------- Securities are offered other than through an underwritten offeringUnderwritten Offering, the Company agrees Registrants agree to cause its their counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h5(g)); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period such Registration Statement is required to be kept effective; and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the securities Registrable Securities covered therebyby the applicable Registration Statement; provided, however, -------- ------- that none of the Company Registrants will not be required to (A) qualify generally as a foreign corporation or limited liability company, or to do business in any jurisdiction where it is not then so qualifiedbusiness, (B) to file a general consent or take any action that which would subject it to general service of process in any such jurisdiction where it is not then so or take any action which would subject or (C) become subject itself to taxation in any jurisdiction where it is not then so subject.such jurisdiction;
(ih) Cooperate if a Shelf Registration Statement is filed pursuant to Section 3, cooperate with the Holders Pass Through Trustee and 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); Company, and enable such Registrable Securities to be in such authorized denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders holders may reasonably request at least two Business Days three business days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.such sale;
(ji) Upon if a Shelf Registration Statement is filed pursuant to Section 3, upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above5(c), as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, reference or file such with the SEC any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunderSecurities, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.. If the Registrants so notify the holders to suspend the use of the Prospectus after the occurrence of such an event, the holders shall suspend use of the Prospectus, and not communicate such material non-public information to any third party, and not sell or purchase, or offer to sell or purchase, any securities of the Registrants, until the Registrants have amended or supplemented the Prospectus to correct such misstatement or omission;
(j) use their reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to continue to be rated by the rating agencies that initially rated the Initial Securities during the period that the Registration Statement is required hereunder to remain effective (it being acknowledged, however, that the foregoing shall not be deemed to require the Registrants to maintain the rating of such Registrable Securities at the rating given the Initial Securities);
(k) Prior prior to the effective date of a the first Registration StatementStatement relating to the Registrable Securities or the Exchange Securities, as the case may be, (i) provide the registrar for the Registrable Securities Pass Through Trustee with printed certificates for such securities in definitive form or in a global form eligible for deposit with DTC The Depository Trust Company and (ii) provide a CUSIP number for such securities.Registrable Securities or Exchange Securities represented by such certificates;
(l) Enter if a Shelf Registration Statement is filed pursuant to Section 3, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings such reasonably required agreements and take all such other appropriate actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.Securities;
(m) Make in the event of any Underwritten Offering (which shall only be undertaken at the option of the Registrants), if a Shelf Registration Statement is filed pursuant to Section 3, make available prior to the filing thereof for inspection by a representative of the Holders holders of a majority in aggregate principal amount of the Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securitiesand the Special Counsel, if anyon the one hand, and any attorney or accountant retained by such representative of the Holders or underwriter, at on the offices where normally keptother hand (collectively, the "Inspectors"), during reasonable business hours, all financial and other ---------- records, pertinent corporate documents and properties of the Company and Registrants (collectively, the subsidiaries of the Company"Records"), and cause the officers, directors and employees ------- of the Company and the subsidiaries of the Company Registrants to supply all relevant information in each case as shall be reasonably requested by necessary to enable them to exercise any such Person in connection with such Registration Statementapplicable due diligence responsibilities; provided, however, that all material non-public as a condition to supplying such -------- ------- information, the Registrants shall receive an agreement in writing from the Special Counsel and by any holders of Registrable Securities agreeing that any information that is designated by the Registrants, in good faith, as confidential shall be kept confidential by such Personinspector (other than as to holders of Registrable Securities who have so agreed) and by such holders of Registrable Securities receiving such information, except to the extent that unless (i) the disclosure of such information is required pursuant to applicable law or by court or administrative order, (ii) disclosure of such information is, in the reasonable opinion of counsel to the Registrants, necessary or advisable to avoid or correct a misstatement or omission of a material fact in the Registration Statement Statement, Prospectus or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that supplement or post-effective amendment thereto or disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdictionotherwise required by law, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable becomes generally available to the Company public other than as a result of the potential a disclosure of by any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder inspector or any such Person, holder of Registrable Securities in violation of this Section 5(m) or (iv) such information has been made generally available to is approved for release by the public.Registrants, in writing;
(n) Comply use their best efforts to cause the Pass Through Trust Agreements or the trust indenture provided for in Section 2, as the case may be, to be qualified under the TIA not later than the effective date of such Registration Statement; and, in connection therewith, cooperate with the Pass Through Trustee under the Pass Through Trust Agreements and the holders of the Registrable Securities to effect such changes to the Pass Through Trust Agreements as may be required for the Pass Through Trust Agreements to be so qualified in accordance with the terms of the TIA and execute, and use their best efforts to cause such Pass Through Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the Commission to enable the Pass Through Trust Agreements or the trust indenture provided for in Section 2 to be so qualified in a timely manner; and
(o) otherwise use their reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) Commission. For purposes of the covenants set forth in this Section 5, references to a Shelf Registration Statement, including a Shelf Registration Statement filed pursuant to Section 3, shall be deemed to include any Registration Statement, filed pursuant to Section 2, which covers, for the period set forth therein, resales of Exchange Securities Act held by Restricted Persons as provided in Section 2, and, in connection with such Restricted Persons shall be entitled to exercise all rights, receive all notices and Rule 158 thereunder copies of documents, and otherwise receive all benefits afforded to sellers or holders of Registrable Securities under this Section 5 in connection with a Shelf Registration Statement. Without limiting the generality of the foregoing, the Registrants agree to fulfill their obligations set forth in Sections 5(a), (or b), (c), (d), (e), (f), (h), (j), (l) and (m) with respect to any similar rule promulgated under such Registration Statement filed pursuant to Section 2 insofar as it covers such resales. The Registrants may require each seller of Registrable Securities as to which any registration is being effected, as a condition thereto, to furnish to the Registrants such information regarding the holder and the distribution of such Registrable Securities Act) no later than forty-five (45) days after as the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) Registrants may, from time to time, request in writing, including without limitation stating that (i) commencing at the end it is not an Affiliate of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and either Registrant, (ii) the amount of Registrable Securities held by such holder prior to the Exchange Officer, (iii) the amount of Registrable Securities owned by such holder to be exchanged in the Exchange Offer and representing that such holder is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution of the Exchange Securities to be issued, and (iv) it is acquiring the Exchange Securities in its ordinary course of business and to covenant and agree to promptly notify the Registrants if not sold any such information so provided by such seller ceases to an underwriter be true and correct and will promptly thereafter furnish the Registrants with corrected information. The Registrants may exclude from such registration the Registrable Securities of any holder who fails to furnish such information within a reasonable time after receiving such request. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Registrants of the happening of any event of the kind described in Section 5(c)(iii), 5(c)(iv), 5(c)(vi) or to underwriters in 5(c)(vii) hereof, such an offering, commencing on the firholder shall forthwith discontinue disposition of such Regis
Appears in 2 contracts
Sources: Registration Rights Agreement (Dynegy Danskammer LLC), Certificate Purchase Agreement (Dynegy Danskammer LLC)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents excluding any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the 30th day following the date such number is exceeded, an additional Registration Statement covering the resale of by the Holders of not less than all of such Registrable Securities and the Company shall use commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as reasonably practicable thereafter.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than two Trading Days following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interests of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicableProspectus.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence Section 3(d) above to permit suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to obtain suspend the availability of a protective order Registration Statement and Prospectus pursuant to clause (or waive vi) of Section 3(d), then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (if practicablevi) of Section 3(d), the Company shall not be required to the extent take such action is otherwise not inconsistent with, an impairment of or in derogation until such time as it shall determine that the continued availability of the rights Registration Statement and Prospectus is no longer not in the best interests of the Holder or any such PersonCompany. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 consecutive days or for multiple periods not to exceed 90 days in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the person thereof that has voting and dispositive control over the Shares, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled and any Event of Default that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Matritech Inc/De/), Registration Rights Agreement (Matritech Inc/De/)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any object, provided, the Company is notified of such amendment or supplement would involve a violation objection no later than 5 Business Days after the Holders have been so furnished copies of the Securities Act or other applicable lawsuch documents.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If the number of Registrable Securities issuable at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file an additional Registration Statement covering the resale of the Registrable Securities by the Holders of not less than 150% of the number of Registrable Securities required in order that all Underlying Shares and all Warrant Shares issuable upon exercise of the Warrants would then be registered in accordance with this Agreement.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than five Business Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Business Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) Furnish to an underwriter each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to underwriters in be incorporated therein by reference, and all exhibits to the extent requested by such an offering, commencing on Person (including those previously furnished or incorporated by reference) promptly after the firfiling of such documents with the Commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Viragen Inc), Registration Rights Agreement (Viragen Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than four (but in any event on or 4) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents other than any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Holder and the managing underwriter or underwriters, if any, an opportunity to review Holder Counsel copies of all such documents proposed to be filed a reasonable time prior to and shall reasonably consider any comments thereto from the proposed filing thereofHolder and Holder Counsel. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, which Holder shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bii) (w) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (x) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (y) respond reasonably promptly, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then amendment thereto and as promptly as reasonably possible provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; provided, however, the Company will not be required to provide copies of any correspondence that would result in force) promulgated under the Securities Actdisclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company; and (z) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities, their counsel Holder and the managing underwriter or underwriters, if any, Holder Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or postRegistration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder a copy of such comments and of all written responses thereto; provided, however, the Company will not be required to provide copies of any responses that would result in the disclosure to the Holder of material and non-effective amendment public information concerning the Company unless the Holder has been filed, and, executed a confidentiality agreement with respect to a the Company); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included or incorporated by reference in any event, the existence of Registration Statement become ineligible for inclusion or incorporation therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(div) Use every reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(ev) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement Furnish or make amendments available to such Registration Statement.
(f) Furnish to each the Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and (but excluding schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including exhibits incorporated exhibits, unless requested in writing by referencethe Holder or Holder Counsel), and such other documents, as the Holder or Holder Counsel may reasonably request, promptly after the filing of such documents with the Commission.
(gvi) Deliver Promptly deliver to each the Holder of Registrable Securities, their counsel and each underwriter, if anyHolder Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph of this Section 411(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hvii) (i) Prepare and timely file with each Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) use reasonable best efforts to cause such Registrable Securities to be approved for listing on each Trading Market as soon as practicable thereafter; (iii) provide to the Holder evidence of such listing; and (iv) use reasonable best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(viii) Prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, Holder and their respective counsel Holder Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subjectby a Registration Statement.
(iix) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Warrant, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jx) Upon the occurrence of any event contemplated by described in clause (vii) of Section 4(c)(v11(b)(iii) or 4(c)(vi) aboveof this Warrant, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Warrant Agreement (Qumu Corp), Warrant Agreement (Qumu Corp)
Registration Procedures. In connection with The procedures to be followed by the Company and each selling Holder, and the respective rights and obligations of the Company and such Holders, with respect to any the preparation, filing and effectiveness of a Registration Statement Statement, and the distribution of Registrable Securities pursuant to Sections 2.1thereto, 2.2 and 2.6 hereof, the Company shall, except are as otherwise providedfollows:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement The Company will, at least five (but in any event on or 5) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated other than any amendment or deemed to be incorporated therein supplement made through the incorporation by reference, including such documents filed under the reference of ordinary course Exchange Act that would be incorporated therein by referencefilings), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus reasonable review of such Holders and (for registrations pursuant ii) use its commercially reasonable efforts to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if address in each such document when so filed with the Commission such comments as the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, reasonably shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawpropose.
(b) Prepare The Company will use commercially reasonable efforts to (i) prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and post- effective amendments supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it law with respect to the disposition of all securities Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as selling securityholders but not any comments that would result in such prospectus as so supplementedthe disclosure to the Holders of material and non-public information concerning the Company.
(c) Notify The Company will comply in all material respects with the Holders provisions of Registrable Securities, their counsel the Securities Act and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment has been filed, and, Exchange Act with respect to a the Registration Statement or any post-effective amendment, when Statements and the same has become effective disposition of all Registrable Securities covered by each Registration Statement.
(including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), d) The Company will notify the Holders as promptly as reasonably possible (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations initiation of any Proceedings for that purpose; and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (ivii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(de) Use every The Company will use commercially reasonable effort efforts to prevent obtain the issuance withdrawal of any order suspending the effectiveness of a Registration Statement, at the Registration Statement earliest practicable moment, or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order or suspension is issuedmade effective during any Black-Out Period, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable moment after the Company has received notification of the matters to be incorporated in such prospectus supplement or postBlack-effective amendment, and (iii) supplement or make amendments to such Registration StatementOut Period is over.
(f) Furnish During the Effectiveness Period, the Company will furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference thereto and all exhibits to the extent requested by such Person (including exhibits those incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the ▇▇▇▇▇ system.
(g) Deliver The Company will promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each other than any amendment or supplement thereto made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request; and, subject to request during the last paragraph of this Section 4, the Effectiveness Period. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto in accordance with this Agreement.
(h) Prior The Company will, prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the applicable state securities or blue sky laws of such those jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees writing to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and use its commercially reasonable efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statements; provided, however, that the Company will not be required to (Ai) qualify generally to do business or as a dealer in securities in any jurisdiction where it is not then so qualified, qualified or (Bii) take any action that which would subject it the Company to general service of process or any material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate The Company will cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statements, which certificates shall not bear any be free, to the extent permitted by the Indenture, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwritersany such Holders may request in writing. In connection therewith, if anyrequired by the Company’s transfer agent, or Holders may reasonably request at least two Business Days prior the Company will promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to its transfer agent when and as required by such transfer agent from time to time, 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 legend upon sale by the holder of such shares of Registrable Securities in a firm commitment underwritten public offeringunder the Registration Statement.
(j) Upon The Company will use commercially reasonable efforts to prepare such supplements or amendments, including a post-effective amendment, if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the occurrence Effectiveness Period; provided, that no such supplement, amendment or filing will be required during a Black-Out Period. No later than 8:00 p.m. (New York time) on any Trading Day on which the Company receives a written notice (a “Use Notice”) prior to 2:00 p.m. (New York time) on such Trading Day (or if such request is received after 2:00 p.m. (New York time), no later than 8:00 p.m. (New York time) on the following Trading Day) from a Holder that such Holder intends to use the Registration Statement to resell Registrable Securities, the Company will (A) provide written confirmation to such Holder that the applicable Registration Statement is Available or (B) provide written notice (a “Suspension Notice”) that the use of such Registration Statement is suspended due to a Black-Out Period. No Suspension Notice will contain the reason for the Black-Out Period. The Company will promptly provide the Holders written notice when the Black-Out Period. If a Black-Out Period commences during any event contemplated by Section 4(c)(v) or 4(c)(vi30 Trading Day period following delivery of a Use Notice and a notice from the Company under clause (A) above, the Company will provide as promptly as practicable prepare a supplement or post-effective amendment to the Holders with written notice thereof and that the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingis no longer Available.
(k) Prior Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the Holder furnishes to the effective date Company a completed questionnaire substantially in the form of a Exhibit A (the “Questionnaire”) for use in connection with the Registration Statement at least ten (10) Trading Days prior to the filing of the Registration Statement; provided, (i) provide however, an Investor shall not be required to furnish a Questionnaire in connection with the registrar for initial Registration Statement if such Investor owns Notes initially purchased by such Investor at the Closing as of the initial Filing Date. Each Holder who intends to include any of its Registrable Securities with certificates for in the Registration Statement shall promptly furnish the Company in writing such securities other information as the Company may reasonably request in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitieswriting.
(l) Enter into The Holders may distribute the Registrable Securities by means of up to two underwritten offerings; provided that (a) the Electing Holders provide written notice to the Company of their intention to distribute Registrable Securities by means of an underwritten offering, (b) the managing underwriter or underwriters thereof shall be designated by the Electing Holders; provided, however, that such designated managing underwriter or underwriters shall be reasonably acceptable to the Company, (c) each Holder participating in such underwritten offering agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting agreement arrangements approved by the persons entitled selecting the managing underwriter or underwriters hereunder and (d) each Holder participating in formsuch underwritten offering completes and executes all questionnaires, scope powers of attorney, indemnities, underwriting agreements and substance as is other documents reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary in legal opinions and auditor “comfort” letters.
(m) In the event the Holders seek to complete an underwritten offerings offering pursuant to Section 3(l), for a reasonable period prior to the filing of any Registration Statement, and take all throughout the Effectiveness Period, the Company will make available upon reasonable notice at the Company’s principal place of business or such other actions as are reasonably requested reasonable place for inspection by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities selected in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwritersSection 3(l), such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents information and properties of the Company books and the subsidiaries records of the Company, and cause the officers, directors employees, counsel and employees of the Company and the subsidiaries independent certified public accountants of the Company to supply all information respond to such inquiries, as shall be reasonably necessary (and in each the case reasonably requested by any of counsel, not violate an attorney-client privilege in such Person in connection with such Registration Statementcounsel’s reasonable belief), to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that all material non-public the foregoing inspection and information gathering on behalf of the Holders (and any managing underwriter or underwriters) shall be kept confidential conducted by such Person, except legal counsel to the extent Holders (and legal counsel to such managing underwriter or underwriters); provided further, that each such party shall be required to maintain in confidence and not to disclose to any other Person any information or records reasonably designated by the Company as being confidential, until such time as (iA) the disclosure of such information is necessary or advisable to avoid or correct becomes a misstatement or omission matter of public record (whether by virtue of its inclusion in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) other manner other than through the release of such information is ordered by any Person afforded access to such information pursuant hereto), or (B) such Person shall be required so to disclose such information pursuant to a subpoena or order of any court or other order from a court of competent jurisdiction, governmental agency or body having jurisdiction over the matter (iii) disclosure subject to the requirements of such information is necessary in connection with any actionorder, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that only after such Person shall take all actions as are reasonably necessary to protect have given the confidentiality Company prompt prior written notice of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicrequirement).
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.1 and 2.2 and 2.6 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause each such Registration Statement to become effective and remain effective as provided herein; providedPROVIDED, howeverHOWEVER, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, shall afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the such Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus Prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l3(m) below, to the knowledge of the Company, below cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes change in such any Registration Statement, Statement or Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 any Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- post-effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicableat the earliest possible moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 43, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of such Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the such Registrable Securities may request; providedPROVIDED, howeverHOWEVER, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h3(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period the Registration Statement relating to such Registrable Securities is required to be kept effective pursuant to this Agreement and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; providedPROVIDED, howeverHOWEVER, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days business days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States 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, 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 the Registration Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by Section 4(c)(v3(c)(v) or 4(c)(vi3(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be 'incorporated therein by reference, and, subject to Section 4(a3(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading and will otherwise comply with law.
(k1) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(lm) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to to, and covenants with, the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; : (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" comfort letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable than those set forth in Section 5 (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreementsaid Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(mn) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriterunderwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during reasonable business hours, all financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Inspector in connection with such Registration Statement; providedPROVIDED, howeverHOWEVER, that all material non-public information shall be kept confidential by such PersonInspector, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is requiredStatement, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is is, in the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person Inspector and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public. Each Selling Holder of such Registrable Securities agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or of any of its affiliates unless and until such is generally available to the public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give prompt notice to the Company and allow the Company to undertake appropriate action to prevent disclosure of the information deemed confidential at the Company's sole expense.
(no) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders securityholders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fire
Appears in 2 contracts
Sources: Registration Rights Agreement (Packaged Ice Inc), Registration Rights Agreement (Packaged Ice Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, and their counsel and the managing underwriter or underwriters, if any, an opportunity to review Special Counsel copies of all such documents proposed to be filed a reasonable time prior filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the proposed filing thereof. The review of such Holders and their Special Counsel which will provide the Company shall not file with any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements comments thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of in a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawprompt manner.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and their Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than five Business Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Business Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any Transaction Document (as defined in the Purchase Agreement) or other agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anytheir Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(ge) Deliver Promptly deliver to each Holder of Registrable Securities, and their counsel and each underwriter, if anySpecial Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(jg) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(vi), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nh) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Jagnotes Com), Registration Rights Agreement (Jag Media Holdings Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant supplement thereto, furnish via email to Section 2.1 hereof) (including documents that would be incorporated those Purchasers or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), their counsels who have supplied the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review with email addresses copies of all such documents proposed to be filed a reasonable time prior filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the proposed filing thereofreview of such Purchasers (it being acknowledged and agreed that if a Purchaser does not object to or comment on the aforementioned documents within the two Trading Day period, then the Purchaser shall be deemed to have consented to and approved the use of such documents). The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 reflect in each such document when so filed with the Commission such comments regarding the Purchasers and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders plan of a majority distribution as the Purchasers may reasonably and promptly propose no later than two Trading Days after the Purchasers have been so furnished with copies of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments as aforesaid.
(bi) Prepare Subject to Section 5.1(d), prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchasers thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented; provided, however, that, subject to applicable requirements, each Purchaser shall be responsible for the delivery of the Prospectus to the Persons to whom such Purchaser sells any of the Shares (including in accordance with Rule 172 under the Securities Act), and each Purchaser agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Purchasers as promptly (but in any event within two (2) Business Days)as reasonably possible, and if requested by the Purchasers, confirm such notice in writingwriting no later than two Trading Days thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement; (ii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iii) the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, ; (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; (v) of the happening of financial statements included in any event, Registration Statement become ineligible for inclusion therein; and (vi) the occurrence or existence of any condition or information becoming known pending development with respect to the Company that requires the making of any changes in such Registration Statement, Prospectus or documents so Company believes may be material and that, in the case determination of such the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement, it will conform in provided that any and all material respects with of such information shall remain confidential to each Purchaser until such information otherwise becomes public, unless disclosure by a Purchaser is required by law; provided, further, that notwithstanding each Purchaser's agreement to keep such information confidential, the requirements of the Securities Act and it will not contain Purchasers make no acknowledgement that 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 misleadingsuch information is material, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriatenon-public information.
(d) Use every commercially reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicablepossible.
(e) If requested by the managing underwriter or underwritersa Purchaser, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment provide such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyPurchaser, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyPurchaser, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Purchaser, use commercially reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel selling Purchasers in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Purchaser requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then otherwise so subject.
(ih) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement and under law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Purchasers may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above5.2(c)(iii)-(vi), as promptly as practicable reasonably practicable, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Prior It shall be a condition precedent to the effective date obligations of a Registration Statement, (i) provide the registrar for Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities with certificates for of any particular Purchaser that such securities Purchaser furnish to the Company a completed Selling Stockholder Questionnaire in a the form eligible for deposit with DTC proffered by the Company (the “Selling Stockholder Questionnaire”) and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions information regarding itself, the Registrable Securities and other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit E hereto) as are shall be reasonably requested by the managing underwriter or underwriters in order required to expedite or facilitate effect the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in shall complete and execute such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Personregistration as the Company may reasonably request, except in the case of any such information referred to in this paragraph, to the extent that (i) the disclosure of failure to provide such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to does not materially affect the Company, and the Company's legal counsel and ’s ability to comply with such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicobligations.
(nk) Comply The Company shall comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of Commission under the Securities Act and the Exchange Act, including, without limitation, Rule 158 thereunder (or any similar rule promulgated 172 under the Securities Act) no later than forty-five (45) days after , file any final Prospectus, including any supplement or amendment thereof, with the end Commission pursuant to Rule 424 under the Securities Act, promptly inform the Purchasers in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Purchasers are required to make available a Prospectus in connection with any disposition of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold and take such other actions as may be reasonably necessary to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on facilitate the firregistration of the Registrable Securities hereunder.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Enphase Energy, Inc.), Securities Purchase Agreement (Enphase Energy, Inc.)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than four (but in any event on or 4) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents other than any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Holder and the managing underwriter or underwriters, if any, an opportunity to review Holder Counsel copies of all such documents proposed to be filed a reasonable time prior to and shall reasonably consider any comments thereto from the proposed filing thereofHolder and Holder Counsel. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, which Holder shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bii) (w) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (x) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (y) respond reasonably promptly, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then amendment thereto and as promptly as reasonably possible provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; provided, however, the Company will not be required to provide copies of any correspondence that would result in force) promulgated under the Securities Actdisclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company; and (z) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities, their counsel Holder and the managing underwriter or underwriters, if any, Holder Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or postRegistration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder a copy of such comments and of all written responses thereto; provided, however, the Company will not be required to provide copies of any responses that would result in the disclosure to the Holder of material and non-effective amendment public information concerning the Company unless the Holder has been filed, and, executed a confidentiality agreement with respect to a the Company); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included or incorporated by reference in any event, the existence of Registration Statement become ineligible for inclusion or incorporation therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(div) Use every reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(ev) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement Furnish or make amendments available to such Registration Statement.
(f) Furnish to each the Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and (but excluding schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including exhibits incorporated exhibits, unless requested in writing by referencethe Holder or Holder Counsel), and such other documents, as the Holder or Holder Counsel may reasonably request, promptly after the filing of such documents with the Commission.
(gvi) Deliver Promptly deliver to each the Holder of Registrable Securities, their counsel and each underwriter, if anyHolder Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph of this Section 411(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hi) Prepare and timely file with each Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) use reasonable best efforts to cause such Registrable Securities to be approved for listing on each Trading Market as soon as practicable thereafter; (iii) provide to the Holder evidence of such listing; and (iv) use reasonable best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(viii) Prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, Holder and their respective counsel Holder Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subjectby a Registration Statement.
(iix) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Warrant, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jx) Upon the occurrence of any event contemplated by described in clause (vii) of Section 4(c)(v11(b)(iii) or 4(c)(vi) aboveof this Warrant, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Warrant Agreement (Numerex Corp /Pa/), Warrant Agreement (Qumu Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in furnish to any event on or prior to the date Holder of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review over $250,000 Subscription Amount copies of all such documents proposed to be filed a reasonable time prior (including documents incorporated or deemed incorporated by reference to the proposed filing thereofextent requested by such Person) which documents will be subject to the review of such Holders. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in good faith, provided that the Company is notified of such objection in writing unless failure to file any no later than 5 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement as so amended or during the applicable period in such prospectus as so supplementedaccordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement.
(c) Notify the Holders of Registrable Securities, their counsel Securities to be sold as promptly as reasonably possible and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information related thereto; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration Registration Statement or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or post-effective amendment amendment, including a posteffective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(c) above to permit suspend the Company use of the use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 90 days (which need not be consecutive days) in any 12 month period.
(nj) Comply with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available dispositive control over the Shares. During any periods that the Company is unable to meet its security holders earnings statements satisfying obligations hereunder with respect to the provisions of Section 11(a) registration of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated damages that are sold accruing at such time shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Imageware Systems Inc), Registration Rights Agreement (Imageware Systems Inc)
Registration Procedures. 1. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or 2. Not less than five business days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in good faith, provided that, the Company is notified of such objection in writing unless failure to file any no later than 4 business days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) 4. Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five business days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one business day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement would be appropriateor Prospectus; provided that any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the Holders make no acknowledgement that any such information is material, non-public information.
(d) 5. Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish 6. Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(h) 7. Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(i) Cooperate 8. If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) 9. Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence 3(c) above to permit suspend the Company use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable) . The Company shall be entitled to exercise its right under this Section to suspend the availability of a Registration Statement and Prospectus, subject to the extent such action is otherwise payment of partial liquidated damages pursuant to Section 2(b), for a period not inconsistent with, an impairment of or to exceed 60 days (which need not be consecutive days) in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public12 month period.
(n) 10. Comply with all applicable rules and regulations of the SEC Commission.
11. The Company may require each selling Holder to furnish to the Company a certified statement as to the number of ordinary shares beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available dispositive control over those ordinary shares. During any periods that the Company is unable to meet its security holders earnings statements satisfying obligations hereunder with respect to the provisions of Section 11(a) registration of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three business days of the Company’s request, any liquidated damages that are sold accruing at such time as to an underwriter or such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold such Holder only, until such information is delivered to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 2 contracts
Sources: Private Placement Subscription Agreement (ZK International Group Co., Ltd.), Private Placement Subscription Agreement (ZK International Group Co., Ltd.)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement AIMCO pursuant to Sections 2.1and in accordance with SECTION 2 hereof (and subject to AIMCO's rights under SECTION 2), 2.2 AIMCO will use commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the Holders' intended method or methods of disposition thereof, and 2.6 hereof, the Company shall, except pursuant thereto AIMCO shall as otherwise providedexpeditiously as possible:
(a) Prepare prepare and file with the SEC as soon as practicable each such a Registration Statement (but for the sale of the Registrable Securities on any form for which AIMCO then qualifies or which counsel for AIMCO shall deem appropriate in any event on accordance with such Holders' intended method or prior methods of distribution thereof and, subject to the date of filing thereof required under this Agreement) and SECTION 2(d), use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any ;
(b) prepare and file with the SEC such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly post-effective amendments) to the Registration Statement, and such supplements to the 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 owning any Registrable Securities covered by such Registration Statement, their counsel and make generally available earnings statements satisfying the managing underwriter or underwriters, if any, an opportunity to review copies provisions of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereofSection 11(a) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare provided that AIMCO shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with ;
(c) notify the provisions of the Holders owning any Registrable Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.
promptly and (cif requested) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any prospectus 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 effective, (including in such notice ii) of any request by the SEC for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information regarding such Holders, (iiiii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company AIMCO of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event, the existence of any condition or information becoming known 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, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it 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;
(d) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction in the United States;
(e) furnish to the Holders disposing of Registrable Securities covered by such Registration Statement, counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of the Registration Statement, as declared effective by the SEC, and that of each post-effective amend- ment thereto, in the case each case, including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the Prospectuspreliminary prospectus, it will conform any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, as such Holder may reasonably request in all material respects order to facilitate the disposition of the Registrable Securities covered by the Registration Statement in conformity with the requirements of the Securities Act Act;
(f) prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Holders disposing of Registrable Securities covered by the Registration Statement shall reasonably request in writing; PROVIDED, HOWEVER, that AIMCO shall in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then subject;
(g) except during any Delay Period, upon the occurrence of any event contemplated by SECTION 4(c)(v) above, promptly file a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.;
(dh) Use every use commercially reasonable effort efforts to prevent the issuance of any order suspending the effectiveness of cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwritersautomated interdealer quotation system, if any, on which similar securities issued by AIMCO are then listed or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.quoted;
(i) Cooperate with on or before the Holders effective date of the Registration Statement, provide the transfer agent of AIMCO for the Registrable Securities and with printed certificates for the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Depositary Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.Company;
(j) Upon if such offering is an underwritten offering, make available for inspection by any Holder disposing of Registrable Securities included in such Registration Statement, any underwriter of such offering, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the occurrence "INSPECTORS"), all financial and other records and other information, pertinent corporate documents and properties of any event contemplated by Section 4(c)(v) or 4(c)(vi) aboveof AIMCO and its subsidiaries (collectively, the "RECORDS"), as promptly as practicable prepare shall be reasonably necessary to enable them to exercise their due diligence responsibility; PROVIDED, HOWEVER, that the Records that AIMCO determines, in good faith, to be confidential shall not be disclosed to any Inspector unless (i) such Inspector signs a supplement or post-effective amendment confidentiality agreement reasonably satisfactory to AIMCO (which shall permit the disclosure of such Records in such Registration Statement or a supplement to the related Prospectus if necessary to avoid or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of correct a material fact misstatement in or omit to state a material fact required to be stated therein omission from such Registration Statement or Prospectus), (ii) after consultation with counsel for the applicable Inspectors, the Holders and AIMCO, the disclosure of such Records is necessary to make avoid or correct a misstatement or omission in such Registration Statement or (iii) the statements thereinrelease of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, PROVIDED that each Holder shall, promptly after learning that disclosure of such Records is sought in light a court having jurisdiction, give notice to AIMCO and allow AIMCO, at AIMCO's expense, to undertake appropriate action to prevent disclosure of the circumstances under which they were made, not misleading.such Records; and
(k) Prior to the effective date of a Registration Statementif such offering is an underwritten offering, enter into such agreements (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into including an underwriting agreement in form, scope and substance as is customary in underwritten offerings offerings) and take all such other appropriate and reasonable actions as are requested by the Holders owning a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriter or underwriters underwriters) in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreementand, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use its commercially reasonable efforts to obtain opinions of counsel to the Company AIMCO and updates thereofthereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holders disposing of Registrable Securities), addressed to each Holder selling Registrable Securities covered by such Registration Statement and each of the underwriter or underwriters covering 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; , (iiiii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company AIMCO (and, if applicable, the subsidiaries of the Company) and, if necessary, any other independent certified public accountants of any subsidiary of the Company AIMCO or of any business acquired by the Company AIMCO for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each Holder selling Registrable Securities covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; offerings, and (iviii) if requested and if an underwriting agreement is entered into, the same shall contain customary provide indemnification provisions and procedures (or such other provisions and procedures acceptable substantially to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) effect set forth in SECTION 7 hereof with respect to all parties to be indemnified pursuant to such agreementsaid Section. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders . With respect to any Registration under SECTION 2 hereof, AIMCO may require each Holder disposing of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained covered by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company Registration to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of furnish such information is necessary or advisable to avoid or correct a misstatement or omission in regarding the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel Holder and such Holder's legal counsel concur that disclosure intended disposition of Registrable Securities as AIMCO may from time to time reasonably request in writing. If any such information with respect to the Holder is required, (ii) the release not furnished within a reasonable period of time after receipt of such information is ordered pursuant to a subpoena or other order request, AIMCO may exclude such Holder's Registrable Securities from a court such Registration. Upon receipt of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any notice from AIMCO of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company happening of any event of the potential disclosure of any information by such Person pursuant to clauses (iikind described in SECTION 4(c)(ii), 4(c)(iii), 4(c)(iv) or (iii4(c)(v) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person hereof, each Holder shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end forthwith discontinue disposition of any fiscal quarter in which Registrable Securities covered by such Registration Statement or Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by SECTION 4(g) hereof, or until such Holder is advised in writing (the "ADVICE") by AIMCO 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 sold incorporated, or deemed to be incorporated, by reference in such Prospectus (such period during which disposition is discontinued being an underwriter or to underwriters in a firm commitment or best efforts underwritten offering "INTERRUPTION PERIOD") and (ii) if not sold requested by AIMCO, deliver to an underwriter AIMCO (at the expense of AIMCO) all copies then in its possession, other than permanent file copies then in its possession, of the Prospectus covering such Registrable Securities at the time of receipt of such request. No Holder shall utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the offering of Registrable Securities pursuant to underwriters in such an offering, commencing on the firSECTION 2 hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1under Section 2 hereof, 2.2 and 2.6 hereofduring the Effectiveness Period, the Company shall, except as otherwise provided:
(a) Prepare Use its reasonable best efforts to prepare and file with the SEC as soon as practicable each such a Registration Statement (but or Registration Statements referred to in any event on Section 2(a) hereof or prior otherwise designate an existing effective filing with the SEC for use by the Holders as a Shelf Registration Statement, and use its reasonable best efforts to the date of filing thereof required under this Agreement) and cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, provided that before filing or designating any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto with the SEC (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents but excluding reports filed with the SEC under the Exchange Act that would be incorporated therein by referenceAct), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Initial Purchasers and the managing underwriter or underwritersSpecial Counsel of such offering, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time or designated at least three (3) Business Days prior to the proposed filing thereof. The Company shall not file any or designation of such Registration Statement or amendment thereto or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of thereto. Unless the Registration Statement is an automatic shelf registration statement, the Company shall include the information required by Rule 430B(b)(2)(iii) under the Securities Act or other applicable lawAct.
(b) Prepare Subject to Section 3(h), prepare and file with the SEC such amendments and post- post-effective amendments to the each Registration Statement as may be necessary to keep such a Registration Statement continuously effective for the time periods prescribed herebyapplicable period specified in Section 2(a); cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to (i) the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof and (ii) the issuance of Underlying Common Stock upon conversion of the Notes, in each case as set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Holders of Registrable SecuritiesNotice Holders, their counsel the Initial Purchasers and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writingSpecial Counsel, (i) when a Prospectus or any Prospectus, prospectus supplement supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed, filed with the SEC or any Registration Statement has been designated for use by the Holders and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness or designation of the Initial Shelf Registration Statement under the Securities Act, without charge, one conformed copy of such by the SEC or any other federal or state governmental authority for amendments or supplements to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information relating to the Shelf Registration Statement, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, and (v) of the happening determination by the Company that a post-effective amendment to a Registration Statement or a supplement to the related Prospectus will need to be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any eventorder suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide immediate notice to each Notice Holder and the Initial Purchasers of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Purchasers, upon request and without charge, at least one (1) conformed copy of the Registration Statement and any amendment thereto, including exhibits and if requested, all documents incorporated or deemed to be incorporated therein by reference.
(f) Deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchasers, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the Notice Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided that the Company will not be required to (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 Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, the filing of a post-effective amendment during any period when the Company is not eligible to use Form S-3 or the initiation of an SEC review of the Company’s filings under the Exchange Act, (B) the occurrence of any event or the existence of any condition fact (a “Material Event”) as a result of which any Registration Statement shall contain any untrue statement of a material fact or information becoming known that requires omit to state any material fact required to be stated therein or necessary to make the making statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any changes in such Registration Statement, Prospectus or documents so pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement, it will conform in all material respects with Statement or a supplement to the requirements of the Securities Act related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and it will Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement and, in the case of a material fact or omit post-effective amendment to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, subject to the next sentence, use its reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability of the Shelf Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) provide above, or until it is advised in writing by the registrar for Company that the Registrable Securities with certificates for Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such securities Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in a form eligible for deposit with DTC and the case of clause (iiA) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in formabove, scope and substance as promptly as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connectionpracticable, (iy) make such representations and warranties to in the underwriter or underwriterscase of clause (B) above, with respect to as soon as, in the business of the Company and the subsidiaries sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of the Shelf Registration Statement or any Prospectus (the “Deferral Period”); provided that the aggregate duration of any Deferral Periods shall not exceed thirty (30) days in any three month period (or sixty (60) days in any three month period in the event of a Material Event pursuant to which the Company has delivered a second notice as required below) or ninety (90) days in any twelve month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the Company may deliver to Notice Holders a second notice to the effect set forth above, which shall have the effect of extending the Deferral Period by up to an additional thirty (30) days, or such shorter period of time as is specified in such second notice.
(i) If reasonably requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be make reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection during normal business hours by a one representative of for the Notice Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if anyany broker-dealers, underwriters, attorneys and any attorney or accountant accountants retained by such representative of for the Holders Notice Holders, and any attorneys or underwriter, at other agents retained by a broker-dealer or underwriter engaged by such representative for the offices where normally kept, during reasonable business hoursNotice Holders, all relevant financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the appropriate officers, directors and employees of the Company and the its subsidiaries of the Company to supply make reasonably available for inspection during normal business hours on reasonable notice all relevant information in each case reasonably requested by such representative for the Notice Holders, or any such Person broker-dealers, underwriters, attorneys or accountants in connection with such Registration Statementdisposition, in each case as is customary for similar “due diligence” examinations; provided, however, provided that all material such persons shall first agree in writing with the Company that any non-public information shall be kept confidential by such Personpersons and shall be used solely for the purposes of exercising rights under this Agreement, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary in connection with any actionto respond to inquiries of regulatory authorities, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or disclosure of such information is required by law, (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or failure to safeguard by any such Person, person or (iv) such information has been made generally becomes available to any such person from a source other than the publicCompany and such source is not bound by a confidentiality agreement, and provided further that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by Special Counsel. Any person legally compelled to disclose any such confidential information made available for inspection shall provide the Company with prompt prior written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.
(nii) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) for a twelve month period commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall be made available no later than forty-five (45) days after the end of any 12-the twelve month period (or ninety (90) days after if the end of any 12-twelve month period if such period is a coincides with the fiscal year) year of the Company.
(i) commencing at Cooperate with each Notice Holder to facilitate the end timely preparation and delivery of any fiscal quarter in which certificates representing Registrable Securities are sold to an underwriter or to underwriters be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations as are permitted by the Indenture and registered in such names as such Notice Holder may request in writing at least two (2) Business Day prior to any sale of such Registrable Securities.
(j) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a firm commitment form eligible for deposit with The Depository Trust Company.
(k) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.
(l) Upon (i) the filing or best efforts underwritten offering designation of the Initial Shelf Registration Statement and (ii) if not sold the effectiveness of the Initial Shelf Registration Statement, announce the same, in each case by publicly disseminating such information through its website or by issuing a press release.
(m) Take all other reasonable actions as are required to permit unrestricted resales of the Registrable Securities and issuances of Underlying Common Stock on an underwriter or to underwriters unrestricted basis upon conversion of Notes in such an offering, commencing on accordance with the firterms a
Appears in 2 contracts
Sources: Registration Rights Agreement (On Semiconductor Corp), Registration Rights Agreement (On Semiconductor Corp)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex B (a “Selling Shareholder Questionnaire”) not less than two Trading Days prior to the Filing Date.
(i) Prepare and file with the SEC as soon as practicable each Commission such amendments, including post-effective amendments, to a Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object used in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities outstanding or issuable at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, the Company shall file as soon as reasonably practicable, an additional Registration Statement covering the resale by the Holders of not less than 120% of the number of Registrable Securities outstanding or issuable less the number of shares of Common Stock then registered in a Registration Statement or otherwise disposed of pursuant to a Registration Statement or an exemption therefrom.
(d) Notify the Placement Agent and the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than 1 Trading Day prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement would be appropriateor Prospectus, provided that any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law.
(de) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the E▇▇▇▇ system need not be furnished in physical form.
(g) Deliver Promptly deliver to each Holder (upon the request of Registrable Securities, their counsel and each underwriter, if anysuch Holder, without charge, which may be delivered via email or facsimile), as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) The Company shall cooperate with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 2710, as requested by any such Holder, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor.
(i) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, however, that (1) the Company will shall not be required to register the Registrable Securities in any jurisdiction wherein an exemption from registration is reasonably available and (A2) the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ij) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jk) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(d)(ii)-(vi), as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kiii) Prior through (vi) of Section 3(d) above to suspend the effective date use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(k) to suspend the availability of a Registration StatementStatement and Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (iwhich need not be consecutive days) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesany 12 month period.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC Commission.
(m) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and make generally available to its security holders earnings statements satisfying dispositive control over the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firShares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Intellinetics, Inc.), Registration Rights Agreement (Intellinetics, Inc.)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event Commission on or prior to the date Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of filing thereof required under this Agreement) Distribution substantially in the form of Exhibit A attached hereto), and cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before not less than three (3) Business Days prior to the filing any such of the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)supplement thereto, the Company shall, upon request, afford promptly shall (i) furnish to the Holders of the Registrable Securities covered by such Registration StatementSpecial Counsel, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless failure counsel to file any the Company determines in writing that such amendment or supplement would involve a violation of the Securities Act or other applicable lawobjection is without merit.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, Special Counsel as promptly as possible (but in any event within two (2) Business Days), and confirm such notice in writing, (iA) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filedto the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective (including in which notice shall be delivered to the Purchasers and Special Counsel on the same day as such notice a written statement that effectiveness), and after the effectiveness thereof: (i) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (ii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement Proceedings for that purpose; (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iviii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (viv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, and if any of the events described in clauses (vii) through (iv) of Section 3(c)(C) occurs, the Company's reasonable determination that a post- effective amendment Company shall use its best efforts to such Registration Statement would be appropriaterespond to and correct the event.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders any Holder of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Securities, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment; provided, and however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (iii) supplement or make amendments addressed to such Registration Statementthe Special Counsel), violate applicable law.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anySpecial Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anythe Special Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, and the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the 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 soldsold pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any Holder may reasonably request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent, which authorize and direct the transfer agent to issue such Registrable Securities in a firm commitment underwritten public offeringwithout legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v3(c)(C)(iii) or 4(c)(vi) above(iv), as promptly as practicable possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Cause all Registrable Securities with certificates for relating to such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesRegistration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Enter into an underwriting agreement Comply in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no not later than forty-five (45) 45 days after the end of any 123-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter furnish such information or to underwriters in a firm commitment or best efforts underwritten offering and (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not sold required by the Securities Act or any similar federal statute then in force) the deletion of the reference to an underwriter such Holder in any amendment or supplement to underwriters the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such an offeringProspectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, commencing on or (ii) there is a significant business opportunity (including, but not limited to, the firacquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (LOCAL Corp)
Registration Procedures. In connection with the obligations case of each registration effected by the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Article II, the Company shallwill use its reasonable best efforts to effect such registration to permit the sale of securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable and will keep the Holders advised on a reasonably current basis as to the initiation of each registration and as to the completion thereof. At its expense, except as otherwise providedthe Company will use its reasonable best efforts to:
(a) Prepare the required TZE Registration Statement, including all exhibits and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior financial statements required pursuant to the date of filing thereof required under this Agreement) Securities Act to be filed therewith, and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) registration statement, or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated thereto, or deemed to be incorporated therein by referenceProspectus, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holder or group of Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed prepared to be filed a reasonable time prior filed, which documents shall be subject to the proposed filing thereof. The Company shall not file any Registration Statement review of, the Holder or Prospectus (for registrations pursuant to Sections 2.1 group of Holders and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their respective counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.;
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the TZE Registration Statement continuously effective as to the Registrable Securities for the time periods prescribed hereby; Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause the any related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing424, (iiv) when a Prospectus or respond as promptly as reasonably possible to any prospectus supplement or post-effective amendment has been filed, and, comments received from the Commission with respect to a Registration Statement or any post-effective amendmentamendment thereto, when and (v) comply in all material respects with the same has become effective provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the TZE Registration Statement during the applicable period in accordance (including subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof as set forth in such notice a written statement that any the TZE Registration Statement.
(c) Furnish to the Holder mayor group of Holders and each underwriter, upon request, obtainif any, without charge, one as many conformed copy copies as such Holder or group of such Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules schedules, all documents incorporated therein by reference and exhibitsall exhibits (including those incorporated by reference);
(d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably request;
(e) On or prior to the date on which the TZE Registration Statement is declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, 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 where it is not then so subject;
(f) Notify the Holder or group of Holders and the managing underwriter, 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, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information;
(g) Promptly notify the Holder or group of Holders (i) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the TZE Registration Statement or of any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary prospectus or final Prospectus or the initiation initiation, or threatening written threatened initiation, of any proceedings for that purpose, such purposes; (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (ivii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby securities so registered for offer offering or sale in any jurisdictionjurisdiction or the initiation, or (B) the initiation written threatened initiation, of any proceeding for such purpose, ; and (viii) of at any time when a Prospectus relating to the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such TZE Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of Statement is required to be delivered pursuant to the Securities Act and it will not contain 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 omit omits to state any a 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) following such notification promptly prepare and furnish to the Holder or group of the Company's Holders a reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance number of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use copies of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if anysupplement to, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States Prospectus as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereundersuch securities, such Prospectus will 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, therein in light of the circumstances under which they were made, made not misleading.;
(kh) Prior to Prevent or obtain the effective date withdrawal of a Registration Statement, any stop order or other order suspending the use of any preliminary or final Prospectus;
(i) provide Promptly incorporate in a Prospectus supplement or post-effective amendment such information as the registrar for managing underwriter and the Registrable Securities Holder or group of Holders agree should be included therein relating to the plan of distribution with respect to such securities, and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(j) Cooperate with the Holder or group of Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates for such representing securities to be sold that are in a form eligible for deposit with DTC The Depository Trust Company and that do not bear any restrictive legends, and enable such securities to be in such denominations and registered in such names as the managing underwriter may request at least two Business Days prior to any sale of securities in any underwritten offering that meets the requirements of Section 2.1(e);
(iik) provide Provide a transfer agent and registrar for all Securities registered pursuant to the TZE Registration Statement and a CUSIP number for all such securities., in each case not later than the effective date of such registration;
(l) Enter Cause all such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed;
(m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of such securities, provided that (i) such underwriting agreement contains reasonable and customary provisions, (ii) if participating in such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;
(n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and substance substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriter, as is the case may be, and their respective counsel;
(o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of 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 reasonably requests, dated the date of execution of the underwriting agreement and brought down to the closing pursuant to the underwriting agreement;
(p) Cooperate with any Holder or group of Holders and each underwriter, if any, participating in the disposition of such securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(r) In connection with any underwritten offerings offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and take all such other actions as are reasonably requested for reasonable periods for inspection by a representative appointed by any Holder, by the managing underwriter and by any attorney, accountant or underwriters in order to expedite other agent retained by any such Holder or facilitate the registration or disposition of any such Registrable Securities in any underwritten offering to be made underwriter, all pertinent financial and other records, corporate documents and properties of the Registrable Securities in accordance with this AgreementCompany, and in such connectioncause all of the Company’s officers, (i) directors and employees and the independent public accountants who have certified the Company’s financial statements to make such representations and warranties themselves available to the underwriter or underwriters, with respect to discuss the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information disposition as shall be kept confidential by necessary to enable them to exercise their due diligence responsibility, provided that any such PersonPerson gaining access to information regarding the Company pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure or use any such information that the Company determines in good faith to be confidential, except to the extent that and of which determination such Person is notified, unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to required by law; (ii) such information is or becomes publicly known other than through a subpoena breach of this or any other order from a court of competent jurisdiction, agreement; (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving becomes available to such Person and arising out ofon a non-confidential basis from a source other than the Company, based upon, relating to which source had no contractual or involving this Agreement or any other duty of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable confidentiality to the Company of the potential disclosure of any information by such Person pursuant with respect to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment and of or in derogation of the rights and interests of which the Holder or any such Person, is aware; or (iv) such information has been made generally available to the public.is independently developed by such Person; and
(ns) Comply In connection with all applicable rules and regulations any underwritten offering meeting the requirements of Section 2.1(e), cause the senior executive officers of the SEC and make generally available Company to its security holders earnings statements satisfying participate in the provisions of Section 11(a) of customary “road show” presentations that may be reasonably requested by the Securities Act and Rule 158 thereunder (or managing underwriter in any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold otherwise to an underwriter or to underwriters facilitate, cooperate with, and participate in such an offering, commencing on the fireach proposed offering contemplated herein and customary selling efforts related thereto.
Appears in 2 contracts
Sources: Registration Rights Agreement (Maxeon Solar Technologies, Ltd.), Convertible Notes Purchase Agreement (Maxeon Solar Technologies, Ltd.)
Registration Procedures. In connection with If and whenever the obligations holders of Registrable Securities request that the Company with respect to offer and sale of any Registration Statement Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Sections 2.1, 2.2 and 2.6 hereofthe provisions of this Agreement, the Company shallshall use its best efforts to effect the registration of the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method of disposition thereof, except and pursuant thereto the Company shall as otherwise providedsoon as practicable and as applicable:
(a) Prepare subject to Section 2(a), Section 2(b) and Section 2(c), prepare and file with the SEC as soon as practicable each such Commission a Registration Statement (but in any event on or prior covering such Registrable Securities and use its best efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.declared effective;
(b) Prepare in the case of a Long-Form Registration or a Short-Form Registration, prepare and file with the SEC Commission such amendments, post-effective amendments and post- effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus until all of such Registrable Securities have been disposed of and to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registrable Securities in accordance with the intended methods of disposition set forth in such Registration Statement as so amended or in such prospectus as so supplemented.Statement;
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any reasonable time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in before filing such Registration Statement, Prospectus or amendments or supplements thereto with the Commission, furnish to one counsel selected by holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to the review, comment and approval of such counsel;
(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, including a Shelf Supplement, to any Prospectus forming a part of such Registration Statement has been filed with the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto, including a Shelf Supplement (in each case including all exhibits and documents incorporated by reference therein), and such other documents as such seller may request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) use its best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder requests and do any and all other acts and things which may be necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that the Company shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or amendment to such Prospectus so that, in as thereafter delivered to the case purchasers of such Registration StatementRegistrable Securities, it will conform in all material respects with the requirements of the Securities Act and it will such Prospectus shall not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders any selling holder of Registrable Securities being soldSecurities, any underwriter participating in any disposition pursuant to such disposition of Registrable Securities, if any, Registration Statement and any attorney attorney, accountant or accountant other agent retained by any such representative of holder or underwriter (collectively, the Holders or underwriter, at the offices where normally kept, during reasonable business hours“Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and (collectively, the subsidiaries of the Company“Records”), and cause the Company’s officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Inspector in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that ;
(i) provide a transfer agent and registrar (which may be the disclosure same entity) for all such Registrable Securities not later than the effective date of such information registration;
(j) use its best efforts to cause such Registrable Securities to be listed on each securities exchange on which the Class A Common Stock is necessary or advisable to avoid or correct then listed or, if the Class A Common Stock is not then listed, on a misstatement or omission in national securities exchange selected by the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release holders of a majority of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, Registrable Securities;
(iiik) disclosure of such information is necessary in connection with any actionan underwritten offering, claimenter 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 request in order to expedite or facilitate the disposition of such Registrable Securities (including, suit or proceedingwithout limitation, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any making appropriate officers of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable Company available to the Company participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (mRegistrable Securities)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.);
(nl) Comply otherwise use its best efforts to comply with all applicable rules and regulations of the SEC Commission and make generally available to its security holders stockholders an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities ActAct or any successor rule thereto) no later than forty-five thirty (4530) days after the end of any the 12-month period (or ninety (90) days beginning with the first day of the Company’s first full fiscal quarter after the end effective date of any such Registration Statement, which earnings statement shall cover said 12-month period period, and which requirement will be deemed to be satisfied if such period is a fiscal yearthe 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;
(m) furnish to each underwriter, if any, with (i) commencing at a written legal opinion of the end Company’s outside counsel, dated the closing date of any fiscal quarter the offering, in which Registrable Securities are sold to an underwriter or form and substance as is customarily given in opinions of the Company’s counsel to underwriters in a firm commitment or best efforts underwritten offering 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 not sold such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a “controlling person” (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) (a “Controlling Person”) of the Company, to underwriters participate in the preparation of such Registration Statement and to require the insertion therein of language, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends and representing such number of shares of Class A Common Stock and registered in such an offeringnames as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule 144; provided, commencing on that the firCompany may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System (the “DTCDRS”);
(s) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the DTCDRS;
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Company, the Company will take all reasonable action to make any such prohibition inapplicable; and
(u) otherwise use its best efforts to take all other steps necessary to effect the registration of such Registrable Securities contemplated hereby.
Appears in 2 contracts
Sources: Stockholders Agreement (P10, Inc.), Stockholders Agreement (P10, Inc.)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than two Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to the Holders conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond promptly to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and promptly provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Liquidated Damage Shares at any time exceeds the number of Liquidated Damage Shares then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of such additional Liquidated Damage Shares.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel and pursuant to CLAUSES (ii) THROUGH (vi) hereof, be accompanied by an instruction to suspend the managing underwriter or underwriters, if any, use of the Prospectus until the requisite changes have been made) promptly (but and, in any event within the case of (i)(A) below, not less than two Trading Days prior to such filing) (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness allow continued availability of the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; PROVIDED, FURTHER, notwithstanding each Holder's agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) abovethis SECTION 3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with CLAUSES (ii) THROUGH (vi) OF SECTION 3(d) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to suspend the availability of a Registration Statement and Prospectus pursuant to CLAUSE (vi) OF SECTION 3(d), then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to CLAUSE (vi) OF SECTION 3(d), the Company shall not be required to take such action until such time as it shall determine that the continued availability of the Registration Statement and Prospectus is no longer not in the best interests of the Company. The Company shall be entitled to exercise its right under this SECTION 3(h) to suspend the availability of a Registration Statement and Prospectus, subject only to the payment of partial liquidated damages pursuant to SECTION 2(b).
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the second Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within two Trading days of the Company's request. During any periods that the Company is unable to an underwriter meet its obligations hereunder with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within two Trading Days of the Company's request, any partial liquidated damages that are accruing as to all Holders at such time shall be tolled and any Event that may otherwise occur as to such Holder solely because of such delay shall be suspended, until such information is delivered to the Company.
(l) Attached as SCHEDULE 3(l) hereto is a schedule of shareholders and shares registered in their names or which they have rights to underwriters acquire from the Company, by way of conversion or otherwise. For each such shareholder, the shares listed on SCHEDULE 3(l) shall be included in a Registration Statement on a piggyback basis, unless such an offeringshares are included in another registration statement or may be sold, commencing on without volume limitations, pursuant to Rule 144 of the firAct.
Appears in 2 contracts
Sources: Registration Rights Agreement (Markland Technologies Inc), Registration Rights Agreement (Markland Technologies Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event Commission on or prior to the date of filing thereof required under this AgreementFiling Date, a Registration Statement (and any additional Registration Statements as may be required) in accordance with Section 2(a), and cause such the Registration Statement to become effective and remain effective as provided herein; providedPROVIDED, howeverHOWEVER, that before not less than five (5) Business Days prior to the filing any such of the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall (i) furnish to the Holders of the Registrable Securities covered by such Registration StatementHolders, their counsel Special Counsel and the any managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, their Special Counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration StatementSecurities, their counselSpecial Counsel, or the any managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve on a violation of the Securities Act or other applicable lawtimely basis.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as practicable to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold, their counsel Special Counsel and any managing underwriters immediately (and, in the managing underwriter or underwriterscase of (i)(A) below, not less than five (5) days prior to such filing) and (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one (i1) Business Day following the day (i)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders) and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the any managing underwriter or underwriters, if any, or the Holders of a majority in interest of the Registrable Securities being to be sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Underwritten Offering, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the such managing underwriter or underwriters, if any, or underwriters and such Holders reasonably request to agree should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment; PROVIDED, and (iiiHOWEVER, that the Company shall not be required to take any action pursuant to this Section 3(e) supplement that would, in the opinion of counsel for the Company, violate applicable law or make amendments be materially detrimental to such Registration Statementthe business prospects of the Company.
(f) Furnish to each Holder of Registrable Securities who so requests Holder, their Special Counsel and to counsel for the Holders of Registrable Securities and each any managing underwriter, if anyunderwriters, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent reasonably requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver Promptly deliver to each Holder of Registrable SecuritiesHolder, their counsel Special Counsel, and each underwriter, if anyany underwriters, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or any underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securitiesselling Holders, the underwriter or underwriters, if any, any underwriters and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing any Holder or underwriter or underwriters reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities and the any managing underwriter or underwriters, if any, underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be soldsold pursuant to a Registration Statement, which certificates shall not bear any be free of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the any such managing underwriter or underwriters, if any, underwriters or Holders may reasonably request at least two three Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringSecurities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(vi), as promptly as practicable practicable, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the OTC Bulletin Board and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the Company are then listed as and when required pursuant to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesPurchase Agreement.
(l) Enter In the case of an Underwritten Offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings Underwritten Offerings) and take all such other actions as are in connection therewith (including those reasonably requested by any managing underwriters and the managing underwriter or underwriters Holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this AgreementSecurities, and in such connectionwhether or not an underwriting agreement is entered into, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company such Holders and the subsidiaries of the Company, 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 such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested; (ii) use reasonable efforts obtain and deliver copies thereof to obtain each Holder and the managing underwriters, if any, of opinions of counsel to the Company and updates thereof, thereof addressed to each selling Holder and each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and Special Counsel to the underwriter or underwriters selling Holders covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such Special Counsel and underwriters; (iii) use reasonable efforts immediately prior to the effectiveness of the Registration Statement or at the time of delivery of any Registrable Securities sold pursuant thereto (at the option of the underwriters), obtain and deliver copies to the Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 areis, or are is required to be, included in the Registration Statement), addressed to each of the underwriters, Person and in such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters substance as are customary in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72Underwritten Offerings; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, than those set forth in Section 7 (or such other provisions and procedures acceptable to Holders the managing underwriters, if any, and holders of a majority of Registrable Securities covered participating in such Underwritten Offering; and (v) deliver such documents and certificates as may be reasonably requested by such Registration Statement the Holders of a majority of the Registrable Securities being sold, their Special Counsel and any managing underwriters to evidence the managing underwriter or underwriters or agents) with respect to all parties to be indemnified continued validity of the representations and warranties made pursuant to such agreement. The clause 3(l)(i) above shall be done at each closing under such underwriting agreement, or as and to evidence compliance with any customary conditions contained in the extent required thereunderunderwriting agreement or other agreement entered into by the Company.
(m) Make available for inspection by the selling Holders, a representative of the Holders of Registrable Securities being soldsuch Holders, any an underwriter participating in any such disposition of Registrable Securities, if any, and any an attorney or accountant retained by such representative of the selling Holders or underwriterunderwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the officers, directors directors, agents and employees of the Company and the its subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Holder, representative, underwriter, attorney or accountant in connection with such the Registration Statement; providedPROVIDED, howeverHOWEVER, that all material non-public any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such PersonPersons, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any respond to inquiries of the transactions contemplated hereby or arising hereunderregulatory authorities; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or any failure to safeguard by such Person, ; or (iv) such information has been made generally becomes available to such Person from a source other than the publicCompany and such source is not known by such Person to be bound by a confidentiality agreement with the Company.
(n) Comply with all applicable rules and regulations of the SEC Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no not later than forty-five (45) 45 days after the end of any 12-12 month period (or ninety (90) 90 days after the end of any 12-12 month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering Underwritten Offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firfirst day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall cover said 12 month period, or end shorter periods as is consistent with the requirements of Rule 158.
(o) The Company may require each selling Holder to furnish to the Company such information regarding the distribution of such Registrable Securities and the beneficial ownership of Common Stock held by such selling Holder as is required by law to be disclosed in the Registration Statement and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not require
Appears in 2 contracts
Sources: Registration Rights Agreement (Fix Corp International Inc), Registration Rights Agreement (Fix Corp International Inc)
Registration Procedures. In connection with the Company's registration obligations of hereunder, the Company with respect shall:
(a) Not less than three Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within fifteen days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in a Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of a Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement for amendments or supplements to a Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in such Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its reasonable effort best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither such Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require each selling Holder to its security holders earnings statements satisfying furnish to the provisions Company a certified statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Securities Act and Rule 158 thereunder (Commission or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after Principal Market, the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fircontrolling person thereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Daugherty Resources Inc), Registration Rights Agreement (Daugherty Resources Inc)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1IN CONNECTION WITH THE COMPANY’S REGISTRATION OBLIGATIONS HEREUNDER, 2.2 and 2.6 hereof, the Company shall, except as otherwise providedTHE COMPANY SHALL:
(a) Prepare and file with Not less than three Trading Days, which shall not be included in the SEC as soon as practicable each such Registration Statement (but in any event on calculation of time period for the purposes of the Company’s obligations under this Agreement or under the Purchase Agreement, prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant or any amendment or supplement thereto, the Company shall furnish to Sections 2.1 and 2.2 hereof) the Holders copies of the plan of distribution proposed to be filed which document will be subject to the review of such Holders. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto (only for registrations pursuant that contains a plan of distribution to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (or iii) respond as promptly as reasonably possible, and in any similar provisions then in force) promulgated under event within 15 Trading Days, to any comments received from the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it Commission with respect to the disposition Registration Statement or any amendment thereto and, as promptly as reasonably possible, upon request, provide the Holders true and complete copies of all securities correspondence from and to the Commission relating to the Registration Statement; and (iv) take such actions to permit distribution of the Registrable Securities covered by such the Registration Statement as so amended or during the applicable period in such prospectus as so supplementedaccordance with the Plan of Distribution.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than two Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to request in connection with resales by the last paragraph Holder of this Section 4, the Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available dispositive control over the Shares. Each Holder agrees to its security holders earnings statements satisfying reasonably cooperate with the provisions of Section 11(a) Company in the preparation of the Securities Act Registration Statement and Rule 158 thereunder (or response by the Company to any similar rule promulgated under comments by the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avicena Group, Inc.), Registration Rights Agreement (Avicena Group, Inc.)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents specifically excluding any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shallshall furnish to each Purchaser and any counsel designated by any Purchaser (each, upon requesta "PURCHASER COUNSEL", afford promptly to the Holders of the Registrable Securities covered by such Registration Statementand Vertical Ventures, their counsel and the managing underwriter or underwriters, if any, an opportunity to review LLC has initially designated Proskauer Rose LLP) copies of all such documents proposed to be filed a reasonable time prior filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the proposed filing thereofreview of such Purchasers and each Purchaser Counsel. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of which Purchasers holding a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 15 days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActPurchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchasers thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, each Purchaser Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or "review" of any prospectus supplement or post-effective amendment has been filed, and, with respect Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such comments and of all written responses thereto); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities Purchaser and each managing underwriter, if anyPurchaser Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel Purchaser and each underwriter, if anyPurchaser Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, selling Purchasers and their respective counsel each applicable Purchaser Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Purchaser requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so otherwise subject.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Purchasers may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above6.2(c)(vii), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lynx Therapeutics Inc), Securities Purchase Agreement (Lynx Therapeutics Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness allow continued availability of the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(d) above to permit suspend the Company use of the use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission and the Holder is not sold an individual, the controlling person thereof, within three Trading days of the Company’s request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company’s request, commencing on any partial liquidated damages that are accruing as to the firHolders at such time shall be tolled and any Event that may otherwise occur as to such Holder solely because of such delay shall be suspended, until such information is delivered to the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (World Health Alternatives Inc), Securities Purchase Agreement (World Health Alternatives Inc)
Registration Procedures. In connection with the obligations filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 Section 2 or 3 hereof, the Company shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) Filing Date, a Registration Statement, and use its best efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that that, before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)thereto, the Company shall, upon request, shall furnish to and afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an a reasonable opportunity to review copies of all such documents (including, if requested in writing, copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed a reasonable time (in each case at least five business days prior to the proposed filing thereofsuch filing). The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the shares of Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object within two business days after the receipt thereof. Notwithstanding anything to the contrary contained in writing unless failure this Agreement, the Company shall not be required to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawengage in more than one Underwritten Offering, if any, pursuant to this Agreement.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the each Demand Registration Statement Statement, as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyEffectiveness Period; cause the related Prospectus to be supplemented by any Prospectus supplement required prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the selling Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, reasonably promptly (but in any event within two (2) Business Daysfive business days), and confirm such notice in writing, (i) when a Prospectus or any prospectus 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)under the Securities Act, (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Registration Rights Agreement (Marquee Group Inc), Registration Rights Agreement (Marquee Group Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than three (but in any event on or 3) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents excluding any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than three (3) Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale of by the Holders of not less than 200% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five (5) Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one (i1) Trading Day following the day (i)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interests of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicableProspectus.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence Section 3(d) above to permit suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to obtain suspend the availability of a protective order Registration Statement and Prospectus pursuant to clause (or waive vi) of Section 3(d), then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (if practicablevi) of Section 3(d), the Company shall not be required to the extent take such action is otherwise not inconsistent with, an impairment of or in derogation until such time as it shall determine that the continued availability of the rights Registration Statement and Prospectus is no longer not in the best interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicCompany.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third (3rd) Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three (3) Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three (3) Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled and any Event of Default that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Smartire Systems Inc), Securities Purchase Agreement (Smartire Systems Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than two (but in any event on or 2) Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto supplement thereto, (only for registrations pursuant to Section 2.1 hereofi) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such person and not already filed by the Company with the Commission) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective legal counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the SALT Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure good faith; provided, however, that any period of time which the Registration Statement is delayed due to file any a willful breach of this Registration Rights Agreement by the Company will be added to such amendment or supplement would involve a violation of the Securities Act or other applicable lawfiling date.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the SALT Registrable Securities for the time periods prescribed herebyEffectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) consistent with Section 2(a) above, respond as promptly as reasonably possible to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities SALT Registrable Securities covered by such the Registration Statement in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of SALT Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel and in the managing underwriter or underwriterscase of (i)(A) below, if any, promptly (but in any event within not less than two (2) Business Days), Days prior to such filing) and (if requested by any such person) confirm such notice in writing, writing promptly following the day (i) (A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto as promptly as reasonably possible to each of the Holders who so requests provided such requesting Holders agree to keep such information confidential until it is publicly disclosed); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus SALT Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, ; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the SALT Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and misleading (vi) provided that such Holder of the Company's reasonable determination that a post- effective amendment SALT Registrable Securities agrees to keep such Registration Statement would be appropriateinformation confidential until it is publicly disclosed).
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the SALT Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If To the extent requested by the managing underwriter or underwriterssuch Holders, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and schedules promptly after the filing of all such documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference)with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons persons may reasonably request; and, subject to request in connection with resales by the last paragraph Holder of this Section 4, the SALT Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the SALT Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any offering of Registrable Securities, Use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such SALT Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority to keep each of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities SALT Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing SALT Registrable Securities to be solddelivered to a transferee that were validly sold pursuant to an effective Registration Statement, which certificates shall not bear any be free, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such SALT Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior . The Company may require each selling Holder to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel furnish to the Company and updates thereof, addressed a certified statement as to the underwriter or underwriters covering number of shares of Common Stock beneficially owned by such Holder and the matters customarily covered person thereof that has voting and dispositive control over the Warrant Shares, for purposes of disclosure in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain the "cold comfortSelling Stockholder" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 table in the Registration Statement, addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 2 contracts
Sources: Registration Rights Agreement (Star Bulk Carriers Corp.), Registration Rights Agreement (Star Bulk Carriers Corp.)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event Commission on or prior to the date Filing Date, a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such Registration Statement shall be on another appropriate form in accordance with the Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of filing distribution thereof required under this Agreement) as described on Annex A hereto (except if otherwise directed by all of the Holders), and use reasonable best efforts to cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective (subject to Section 3.1(m)) as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities; cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; respond promptly to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.. The Company shall (A) permit Legal Counsel (as defined below) to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its initial filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects in good faith in writing. The Company shall furnish to Legal Counsel, without charge, copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement.
(c) Notify At the time the Commission declares the Registration Statement effective, each Holder shall be named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Registrable Securities included in the Registration Statement in accordance with applicable law, subject to the terms and conditions hereof. From and after the date the Registration Statement is declared effective, any Holder not named as a selling stockholder in the Registration Statement at the time of effectiveness may request that the Company amend or supplement the Registration Statement to include such Holder as a selling stockholder, and the Company shall, as promptly as practicable and in any event upon the later of (x) ten (10) Business Days after such date or (y) ten (10) Business Days after the expiration of any Deferral Period (as defined in Section 3.1(m)) that is either in effect or put into effect within ten (10) Business Days of such date:
(i) if required by applicable law, prepare and file with the Commission a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file with the Commission any other required document so that the Holder is named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of such Holder’s Registrable Securities included in the Shelf Registration Statement in accordance with applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date that is sixty (60) days after the date such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to Section 3.1(c)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 3.1(c)(i);
(d) Promptly notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly Securities (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) when a Registration Statement, a Prospectus or any prospectus Prospectus supplement or pre- or post-effective amendment has been to the Registration Statement is filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, andand if requested by such Holders, furnish to them a copy of such comments and the Company’s responses thereto and (C) with respect to a the Registration Statement or any post-post- effective amendmentamendment filed by the Company, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information of the Company; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby of the Company for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate..
(de) Use every reasonable effort best efforts to prevent avoid the issuance of of, and, if issued, to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any U.S. jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable..
(ef) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Securities, (i) promptly incorporate in a prospectus Prospectus supplement or post-post- effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein unless the inclusion of such information would reasonably be expected to comply with applicable law, expose the Company to liability under federal and state securities laws and regulations and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(fg) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, charge and upon request, one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including exhibits those previously furnished or incorporated by reference).) promptly after the filing of such documents with the Commission, provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system.
(gh) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many not more than five (5) copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably requestthereto; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior thereto to any offering of Registrable Securities, to register or qualify, the extent permitted by federal and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, state securities laws and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.regulations.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities of the Company to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in sold pursuant to a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3.1(d)(v), as promptly as practicable prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading..
(k) Prior Use reasonable best efforts to cause all Registrable Securities relating to the effective date of a Registration StatementStatement to be listed on the Nasdaq Stock Market, (i) provide LLC or any subsequent securities exchange, quotation system or market, if any, on which similar securities issued by the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.Company are then listed or traded.
(l) Enter into an underwriting agreement in form, scope The Company may require each selling Holder to furnish to the Company information regarding such Holder and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition distribution of such Registrable Securities in any underwritten offering as is required by law to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 disclosed in the Registration Statement, addressed to each of and the underwriters, Company may exclude from such letters to be in customary form and covering matters of registration the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by of any such Registration Statement and the managing underwriter or underwriters or agentsHolder who fails to furnish such information within fifteen (15) with respect to all parties to be indemnified pursuant to days after receiving such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderrequest.
(m) Make If (i) there is material non-public information regarding the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose, then the Company may postpone or suspend filing or effectiveness of a Registration Statement for inspection a period (a “Deferral Period”) not to exceed forty-five (45) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3.1(m) for more than sixty (60) days in the aggregate during any consecutive 12-month period; provided, however, that no such postponement or suspension by a representative the Company shall be permitted for more than one forty-five (45) day period, arising out of the same set of facts, circumstances or transactions.
(n) The Company shall use reasonable best efforts to register or qualify, or cooperate with the Holders of the Registrable Securities being sold, any underwriter participating included in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Registration Statement in connection with the registration or qualification of, the resale of the Registrable Securities under applicable securities or “blue sky” laws of such states of the United States as any such Holder requests in writing and to do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that all material non-public information the Company shall not be kept confidential by such Person, except required to the extent that (i) the disclosure of such information is necessary or advisable qualify generally to avoid or correct a misstatement or omission in the Registration Statement or do business in any Prospectus; provided, however, that prior notice jurisdiction where it is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, not then so qualified or (ii) the release take any action that would subject it to general service of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter process or to underwriters taxation in a firm commitment or best efforts underwritten offering and (ii) if any jurisdiction to which it is not sold to an underwriter or to underwriters in such an offering, commencing on the firthen so subject.
Appears in 2 contracts
Sources: Registration Rights Agreement (Alimera Sciences Inc), Registration Rights Agreement (Alimera Sciences Inc)
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except as otherwise provided:
(a) Prepare Each Holder will furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex A at least five Trading Days before the Filing Date or earlier at the Company’s request; and will furnish, at the Company’s request, a statement certifying the number of shares of Common Stock beneficially owned by the Holder and, if required by the Commission, the name of the Person who has voting and dispositive control over the Shares
(b) The Company will (i) prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to Commission the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective for the time periods prescribed herebyRegistrable Securities for the Effectiveness Period; cause (ii) respond as promptly as reasonably possible to any comments received from the related Prospectus Commission with respect to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (the Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment; and (iii) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement as so amended or in such prospectus as so supplementedduring the applicable period.
(c) Notify The Company will use commercially reasonable efforts to avoid the Holders of Registrable Securitiesissuance of, their counsel and the managing underwriter or underwritersor, if anyissued, promptly (but in any event within two (2) Business Days), and confirm such notice in writingobtain the withdrawal of, (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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.. Registration Rights Agreement
(ed) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the The Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the will use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, such of Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such the jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in to keep the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration Registration or qualification (or exemption therefromexemption) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such those jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will is not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation material tax in any jurisdiction where it is not then so subject, or file a general consent to service of process in any such jurisdiction.
(ie) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying Commission.
(f) The Company will notify the provisions of Section 11(a) of Holders immediately, with confirmation in writing, if it receives during the Securities Act and Rule 158 thereunder (Effectiveness Period a notice from any federal or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end state regulatory authority of any 12-month period (or ninety (90) days after action that could affect the end of any 12-month period if such period is a fiscal year) (i) commencing at Holders’ ability to sell the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firSecurities.
Appears in 1 contract
Sources: Registration Rights Agreement (Bullion River Gold Corp)
Registration Procedures. In connection with the Company’s registration obligations of hereunder, the Company with respect shall:
(a) Not less than five Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with furnish to the SEC as soon as practicable each Holders owning Registrable Securities registered under such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, registered thereunder shall reasonably object in good faith, provided that the Company is notified of such objection in writing unless failure to file any no later than five Trading Days after such amendment or supplement would involve a violation Holders have been so furnished copies of the Securities Act or other applicable lawsuch documents.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and a Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyapplicable Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to such Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects during the applicable Effectiveness Period with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the Holders’ intended methods of disposition set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of hereunder, the Company with respect shall:
(a) To the extent reasonably practicable, not less than one Trading Day prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in a Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Securities to be sold as promptly (but in any event within two (2) Business Days), and confirm such notice in writing, as reasonably possible when (i) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment to a Registration Statement has been filed, and, with respect to a ; (ii) the Registration Statement or any post-effective amendment, when the same amendment has become effective effective; (including in such notice iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement for amendments or supplements to a Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiv) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement Proceedings for that purpose; (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in such Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including including, to the extent requested by such Holder, financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission, in each case only if such document is not available on-line on the Company’s or the Commission’s website.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Holder may reasonably request; and, subject . Subject to the last paragraph of this Section 43(i), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to a sale pursuant to the Registration Statement, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by clauses (iii) through (vi) of Section 4(c)(v) or 4(c)(vi3(c) above, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(kj) Prior The Company may require, as a condition precedent to the effective date Company’s obligations hereunder, each selling Holder to furnish to the Company a certified statement as to the number of a Registration Statementshares of Common Stock beneficially owned by such Holder and, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably if requested by the managing underwriter or underwriters in order Commission, the controlling person thereof and any other information required to expedite or facilitate the effect the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderSecurities.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than four (but in any event on or 4) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement related Prospectus or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) amendment or any amendments or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents other than any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Holder and the managing underwriter or underwriters, if any, an opportunity to review Holder Counsel copies of all such documents proposed to be filed a reasonable time prior to and shall reasonably consider any comments thereto from the proposed filing thereofHolder and Holder Counsel. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, which Holder shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bii) (w) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (x) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (y) respond reasonably promptly, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then amendment thereto and as promptly as reasonably possible provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; provided, however, the Company will not be required to provide copies of any correspondence that would result in force) promulgated under the Securities Actdisclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company; and (z) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities, their counsel Holder and the managing underwriter or underwriters, if any, Holder Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or postRegistration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder a copy of such comments and of all written responses thereto; provided, however, the Company will not be required to provide copies of any responses that would result in the disclosure to the Holder of material and non-effective amendment public information concerning the Company unless the Holder has been filed, and, executed a confidentiality agreement with respect to a the Company); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included or incorporated by reference in any event, the existence of Registration Statement become ineligible for inclusion or incorporation therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(div) Use every reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(ev) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement Furnish or make amendments available to such Registration Statement.
(f) Furnish to each the Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and (but excluding schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including exhibits incorporated exhibits, unless requested in writing by referencethe Holder or Holder Counsel), and such other documents, as the Holder or Holder Counsel may reasonably request, promptly after the filing of such documents with the Commission.
(gvi) Deliver Promptly deliver to each the Holder of Registrable Securities, their counsel and each underwriter, if anyHolder Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph of this Section 411(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hvii) (i) Prepare and timely file with each Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) use reasonable best efforts to cause such Registrable Securities to be approved for listing on each Trading Market as soon as practicable thereafter; (iii) provide to the Holder evidence of such listing; and (iv) use reasonable best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(viii) Prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, Holder and their respective counsel Holder Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subjectby a Registration Statement.
(iix) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Warrant, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jx) Upon the occurrence of any event contemplated by described in clause (vii) of Section 4(c)(v11(b)(iii) or 4(c)(vi) aboveof this Warrant, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Warrant Agreement (Radisys Corp)
Registration Procedures. In connection with the Company's registration obligations of hereunder, the Company with respect shall:
a. Not less than five (5) Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with furnish to the SEC as soon as practicable each Holders owning Registrable Securities registered under such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, registered thereunder shall reasonably object in good faith, provided that the Company is notified of such objection in writing unless failure to file any no later than five (5) Trading Days after such amendment or supplement would involve a violation Holders have been so furnished copies of the Securities Act or other applicable lawsuch documents.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and a Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyapplicable Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to such Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects during the applicable Effectiveness Period with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the Holders' intended methods of disposition set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) c. Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Securities to be sold as promptly as reasonably possible (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of a Registration Statement and whenever the Commission comments in writing on a Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of Registration Statement for amendments or supplements to such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus such Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, ; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any eventevent of which the Company has knowledge as a result of which a Prospectus, the existence of any condition or information becoming known that requires the making of any changes as then in such Registration Statementeffect, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain contains any untrue statement of a material fact or omit omits 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) d. Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon promptly as reasonably practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) e. Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one (1) conformed copy of the each Registration Statement registering Registrable Securities held by such Holder and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested in writing by such Person, and all exhibits to the extent requested by such Person in writing (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver f. Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(h) g. Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the applicable Registration Statement; provided, however, that the Company will shall not be -------- required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(i) Cooperate h. If requested in writing by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the applicable Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) i. Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the applicable Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither such Registration Statement nor the purchasers of Registrable Securities being sold thereunder, such Prospectus included therein will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities Holders in accordance with certificates for such securities in a form eligible for deposit with DTC and clauses (ii) provide a CUSIP number for through (v) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such securities.
(l) Enter into an underwriting agreement in formProspectus have been made, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by then the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition Holders shall suspend use of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Prospectus. The Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) will use its commercially reasonable efforts to obtain opinions ensure that the use of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as a Prospectus may be reasonably requested by underwriters; (iiiresumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) use reasonable efforts to obtain "cold comfort" letters and updates thereof from suspend the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders availability of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect applicable Prospectus, subject to all parties to be indemnified the payment of liquidated damages pursuant to such agreement. The above shall Section 2(b), for a period not to exceed sixty (60) Trading Days (which need not be done at each closing under such underwriting agreement, or as and to the extent required thereunderconsecutive days) in any twelve (12) month period.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating j. Comply in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC Commission.
k. The Company may require each Holder, upon three (3) Trading Days' notice, to furnish to the Company a certified statement as to, among other things, the number of shares of Common Stock beneficially owned by such Holder and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act person that has voting and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if dispositive control over such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firShares.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness allow continued availability of the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(d) above to permit suspend the Company use of the use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission and the Holder is not sold an individual, the controlling person thereof, within three Trading days of the Company’s request. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any partial liquidated damages that are accruing as to the Holders at such time shall be tolled and any Event that may otherwise occur as to such Holder solely because of such delay shall be suspended, until such information is delivered to the Company.
(l) If NASDR Rule 2710 requires any broker-dealer to make a filing prior to executing a sale by a Holder, make an underwriter or Issuer Filing with the NASDR, Inc. Corporate Financing Department pursuant to underwriters NASDR Rule 2710(b)(10)(A)(i) and respond within five Trading Days to any comments received from NASDR in such an offeringconnection therewith, commencing on and pay the firfiling fee required in connection therewith.
Appears in 1 contract
Sources: Registration Rights Agreement (World Health Alternatives Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than 5 Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such each Registration Statement and not less than one 1 Trading Day prior to become effective and remain effective as provided herein; provided, however, that before the filing of any such Registration Statement related Prospectus or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) amendment or any amendments or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that the Company may excise any information contained therein which would constitute material non-public information as to any Holder which has not executed a confidentiality agreement with the Company); and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than 1 Trading Day prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement would be appropriateor Prospectus; provided that any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; PROVIDED, -------- further, notwithstanding each Holder's agreement to keep such information confidential, the Holders make no acknowledgement that any such information is material, non-public information.
(de) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish If requested by a Holder, furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anysuch Holder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission's website.
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) [Reserved].
(i) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ij) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jk) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kiii) Prior through (vi) of Section 3(d) above to suspend the effective date use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(k) to suspend the availability of a Registration StatementStatement and Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 calendar days (iwhich need not be consecutive days) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesany 12 month period.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC Commission.
(m) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and make generally available dispositive control over the Shares. During any periods that the Company is unable to meet its security holders earnings statements satisfying obligations hereunder with respect to the provisions of Section 11(a) registration of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company's request, any liquidated damages that are sold accruing at such time as to an underwriter or such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold such Holder only, until such information is delivered to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness allow continued availability of the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder's agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence Section 3(d) above to permit suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to obtain suspend the availability of a protective order Registration Statement and Prospectus pursuant to clause (or waive vi) of Section 3(d), then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (if practicablevi) of Section 3(d), the Company shall not be required to the extent take such action is otherwise not inconsistent with, an impairment of or in derogation until such time as it shall determine that the continued availability of the rights Registration Statement and Prospectus is no longer not in the best interests of the Holder or any such PersonCompany. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus, or (iv) such information has been made generally available subject to the publicpayment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 45 consecutive days or for multiple periods not to exceed 60 days in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any partial liquidated damages that are accruing as to all Holders at such time shall be tolled and any Event that may otherwise occur as to such Holder solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Waverider Communications Inc)
Registration Procedures. In connection with the Company's registration obligations of hereunder (including those related to the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofIPO Event), the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall (i) furnish to the Holders of Lead Purchaser and its counsel, Proskauer Rose LLP (the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review "LEAD PURCHASER COUNSEL") copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of the Lead Purchaser and Lead Purchaser Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of the Lead Purchaser Counsel, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Lead Purchaser shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActPurchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchasers thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders Lead Purchaser of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, Lead Purchaser Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than three Business Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or "review" of any prospectus supplement or post-effective amendment has been filed, and, with respect Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to Lead Purchaser a copy of such comments and of all written responses thereto except to the extent prohibited under Section 4.6 hereof); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; (vvii) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and or (viviii) when the continued effectiveness of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriaterequire the Company to disclose a material financing, acquisition or other corporate transaction, which disclosure the Company shall have determined in good faith is not in the best interests of the Company and its stockholders at that time.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests Lead Purchaser and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyLead Purchaser Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel Purchaser and each underwriter, if anyLead Purchaser Counsel, without charge, as many not more than five copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph of this Section 46.5, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior Except for the IPO Event, prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, selling Purchasers and their respective counsel Lead Purchaser Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Purchaser reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company will shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so otherwise subject.
(ih) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Purchasers may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above6.2(c)(vii), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The Company may require each selling Purchaser to furnish in writing to the Company a selling security holder questionnaire in the form attached hereto as Exhibit G (a "SELLING HOLDER QUESTIONNAIRE").
(k) Prior The Company shall not be required to include the effective date Registrable Securities of a any Purchaser in the Registration Statement, Statement and shall not be required to pay any liquidated or other damages under clause (i) provide of Section 6.1(e) to the registrar for extent it relates to failure to file the Registrable Registration Statement or become effective (nor shall any such Purchaser be entitled to exercise this rights in clause (i) of Section 6.1(f) to the extent it relates to failure to file the Registration Statement or become effective) to any Purchaser hereof who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least five (5) Business Days prior to the Filing Date (to the extent requested in writing by the Company) or any other information that the Commission's staff may require from a Purchaser as a condition to allowing such Registration Statement to be declared effective under the Securities with certificates for Act (as evidenced by written comments made by the Commission in its review of such securities in a form eligible for deposit with DTC Registration Statement and (ii) provide a CUSIP number for such securitiesdelivered to Lead Purchaser).
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested Cooperate with any due diligence investigation undertaken by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters Purchasers in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority sale of Registrable Securities covered Securities, including without limitation by such Registration Statement making available any material documents and information; provided that the managing underwriter Company will not deliver or underwriters or agents) with respect make available to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreementany Purchaser material, or as and to the extent required thereundernonpublic information.
(m) Make available Except for inspection by the IPO Event, if holders of a representative majority of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered offered pursuant to a subpoena or other order from a court of competent jurisdictionRegistration Statement select underwriters for the offering, (iii) disclosure of such information is necessary the Company shall enter into and perform its obligations under an underwriting agreement, in connection with usual and customary form, including, without limitation, by providing customary legal opinions, comfort letters and indemnification and contribution obligations. Such holders shall be responsible for any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, underwriting discounts relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicoffering.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 1 contract
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 under Section 2 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before Before filing any such Shelf Registration Statement Statement, Prospectus or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to contemplated by Section 2.1 hereof3(b) (including documents that would be incorporated or deemed to be incorporated therein by referencewith the SEC, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review furnish each Holder copies of all such documents proposed to be filed a and use its reasonable time prior best efforts to reflect in each such document when so filed with the SEC such comments as any Holder reasonably shall propose within two Business Days after receiving such proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawfiling.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the Shelf Registration Statement as may be necessary to keep such the Shelf Registration Statement continuously effective for until the time periods prescribed herebyexpiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such the Shelf Registration Statement until the expiration of the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in the Shelf Registration Statement as so amended or in such prospectus the related Prospectus as so supplemented.
(c) Notify the Holders Deliver to each Holder in connection with any sale of Registrable Securities, their counsel and Securities pursuant to the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 Shelf Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtainStatement, without charge, one conformed copy as many copies of the Prospectus relating to the Registrable Securities and any amendment or supplement thereto as such Holder may reasonably request; and the Company hereby consents to the use of the Prospectus and each amendment or supplement thereto by each Holder in connection with any offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto in the manner set forth therein.
(d) Within a reasonable period after the date that (1) the Shelf Registration Statement or post-becomes effective amendment including financial statements under the Securities Act, and schedules (2) a Holder delivers the certificate representing such Holder's Registrable Securities, duly endorsed, to the extent necessary, prepare and exhibits)deliver certificates representing Registrable Securities to be sold pursuant to the Shelf Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations and registered in such names as such Holder may request.
(iie) of Upon (A) the issuance by the SEC of any a stop order suspending the effectiveness of such the Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, respect to the knowledge of the Company, cease to be true and correct in any material respect, (ivShelf Registration Statement under Section 8(d) or 8(e) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdictionAct, or (B) the initiation occurrence of any proceeding for such purpose, (v) of the happening of any event, event or the existence of any condition fact (a "MATERIAL EVENT") as a result of which the Shelf Registration Statement shall contain any untrue statement of a material fact or information becoming known omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or the related Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the determination of the Board of Directors of the Company in good faith to suspend the availability of the Shelf Registration Statement and the related Prospectus because the disclosure required thereby would adversely affect a material financing, acquisition, disposition, reorganization or other material transaction involving the Company or any of its subsidiaries (such condition, a "BLACKOUT CONDITION"):
(i) give prompt notice to each Holder that requires the making availability of the Shelf Registration Statement is suspended (a "DEFERRAL NOTICE"), such notice to state that it is a Deferral Notice under this Agreement, and state whether it is being delivered due to an event under (A), (B) or (C) above, and, upon receipt of any changes Deferral Notice, each Holder shall not sell any Registrable Securities pursuant to the Shelf Registration Statement until such Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (ii) below, or until it (x) is advised in writing by the Company that the Prospectus may be used, and (y) has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Registration StatementProspectus or, Prospectus or documents so thatin connection with a Blackout Condition, the expiration of ninety (90) days from delivery of the relevant Deferral Notice;
(ii) in the case of such clause (A) above, the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof; and in the case of clause (B) above, subject to the next sentence, as promptly as practicable after the Material Event, the Company shall prepare and file, if necessary pursuant to applicable law, a post-effective amendment to the Shelf Registration Statement, it will conform in all material respects with Statement or a supplement to the requirements of related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into the Securities Act Shelf Registration Statement and it will Prospectus so that the Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will related Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement and, in the case of a material fact or omit post-effective amendment to state a material fact required the Shelf Registration Statement, subject to be stated therein or necessary the next sentence, use their reasonable best efforts to make the statements therein, in light of the circumstances under which they were made, not misleadingcause it to become effective as promptly as is practicable.
(kiii) Prior Notwithstanding anything contained herein to the effective date of a Registration Statementcontrary, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered intoa Blackout Condition, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Company may only suspend the Shelf Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating twice in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that twelve (i12) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or for an aggregate of ninety (90) days after from the end delivery of any 12-month period if such period is a fiscal year) the relevant Deferral Notices (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir"MAXIMUM BLACKOUT PERIOD").
Appears in 1 contract
Sources: Registration Rights Agreement (Istar Financial Inc)
Registration Procedures. In connection with the Company's registration obligations of hereunder, the Company with respect shall:
(a) Not less than three Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective (subject to Section 2(d)) as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within fifteen days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it the Company with respect to the disposition of all securities Registrable Securities covered by such a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in a Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of a Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement for amendments or supplements to a Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in such Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent reasonably requested by such Person, and all exhibits to the extent reasonably requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement and the Settlement Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior subject to any sale of Registrable Securities in a firm commitment underwritten public offeringapplicable laws.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v3(c)(v) or 4(c)(vi) aboveand subject to Section 2(d), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment if needed, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither such Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require each selling Holder to its security holders earnings statements satisfying furnish to the provisions Company a certified statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Securities Act and Rule 158 thereunder (or any similar rule promulgated under Commission, the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fircontrolling person thereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Adept Technology Inc)
Registration Procedures. In connection with the obligations of If and whenever the Company with respect is required to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofregister Registrable Securities in a Piggyback Registration, the Company shallwill use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, except and pursuant thereto the Company will as otherwise providedexpeditiously as possible:
(a) Prepare prepare and file with the SEC as soon as practicable each such a Registration Statement (but in any event on or prior with respect to the date of filing thereof required under this Agreement) such Registrable Securities and use its best efforts to cause such Registration Statement to become effective and remain continuously effective as until the date earlier to occur of (i) the date six months from the date such Registration Statement was declared effective, and (ii) the date the last of the Registrable Securities covered by such Registration Statement have been sold provided herein; provided, however, that before filing any such a Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)thereto, the Company shall, upon request, afford promptly shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Statement and the managing underwriter or underwriters, if any, an opportunity to review draft copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereof. The review of such Holders and underwriters, and the Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) amendment thereto or any amendments Prospectus or supplements any supplement thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, Statement or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.object;
(b) Prepare prepare and file with the SEC such amendments and post- post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented requested by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (Holder of Registrable Securities or any similar provisions then in force) promulgated under 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; and comply with the provisions of the Securities Act, the Exchange Act and the or rules and regulations of thereunder to keep the SEC promulgated thereunder applicable to it with respect to the disposition of Registration Statement effective until all securities Registrable Securities covered by such Registration Statement as so amended or are sold in accordance with the intended plan of distribution set forth in such prospectus as so supplemented.Registration Statement or supplement to the Prospectus;
(c) Notify promptly notify the selling Holders of Registrable Securities, their counsel Securities and the managing underwriter or underwritersunderwriter, if any, promptly and (but in if requested by any event within two (2such Person) Business Days), and confirm such notice advice in writing, ,
6 36 (i1) when a the Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a the Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fireffective,
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare Not less than five (5) Business Days prior to the filing of a Registration Statement and file with not less than three (3) Business Days prior to the SEC filing of any related Prospectus or any amendment or supplement thereto (except for annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K and any similar or successor reports), the Company shall furnish to the Holder copies of such Registration Statement, Prospectus or amendment or supplement thereto, as soon as practicable each proposed to be filed, which documents will be subject to the review of such Holder. The Company shall permit a single firm of counsel designated by the Holders of a majority of the Registrable Securities covered by a Registration Statement to review such Registration Statement and all amendments and supplements thereto (but in any event on as well as all requests for acceleration or prior to the date of filing thereof required under this Agreementeffectiveness thereof) and cause use commercially reasonable best efforts to reflect in such documents any comments as such counsel may reasonably propose and will not request acceleration of such Registration Statement without prior notice to become effective and remain effective as provided herein; provided, however, that before filing any such counsel. The Company shall not file a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Statement shall reasonably and timely object to in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(b) Prepare Except in circumstances contemplated by Sections 3(c) and 4 below, and as provided therein: (i) prepare and file with the SEC Commission such amendments (including post-effective amendments) and post- effective amendments supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the time periods prescribed herebyCommission such Remainder Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to each Registration Statement or any similar provisions then amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement but, except as agreed by a Holder, not any comments that would result in force) promulgated under the Securities Actdisclosure to the Holders of material and non-public information concerning the Company; and (iv) comply with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement until such time as all of such Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented; provided, however, that each Holder shall be responsible for the delivery of the Prospectus to the Persons to whom such Holder sells any of the Shares (including in accordance with Rule 172 under the Securities Act), and each Holder agrees that sales of Registrable Securities pursuant to a Registration Statement shall be in compliance with the plan of distribution described in the applicable Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Exchange Act report which created the requirement for the Company to amend or supplement such Registration Statement was filed.
(c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (v) hereof, be accompanied by an instruction to suspend the use of Registrable Securitiesthe Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three (3) Business Days prior to such filing, in the case of (iii) and (iv) below, not more than one (1) Business Day after such issuance or receipt, and in the managing underwriter or underwriterscase of (v) below, if any, promptly not less than one (but 1) Business Day after a determination by the Company that the financial statements in any event within two Registration Statement have become ineligible for inclusion therein) and (2if requested by any such Person) Business Days), and confirm such notice in writing, writing no later than one Business Day following the day (ii)(A) 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed is proposed to be incorporated therein by reference, and, subject to Section 4(afiled; (B) hereof, file such with when the SEC so that, as thereafter delivered to Commission notifies the purchasers of Registrable Securities being sold thereunder, such Prospectus Company whether there will not contain an untrue statement of be a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition “review” of such Registrable Securities Registration Statement and whenever the Commission comments in writing on any underwritten offering to be made of the Registrable Securities Registration Statement (in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of which case the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 shall provide to each of the underwriters, such letters to be in customary form Holders true and covering matters complete copies of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and comments that pertain to the extent required thereunder.
(m) Make available for inspection by Holders as a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney “Selling Stockholder” or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure “Plan of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; providedDistribution” and all written responses thereto, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firbut not
Appears in 1 contract
Sources: Investor Rights Agreement (Sunesis Pharmaceuticals Inc)
Registration Procedures. In connection with the Company's registration obligations of hereunder, the Company with respect shall:
(a) Not less than five Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior furnish to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (Special Counsel for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, and their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible provide the Securities ActSpecial Counsel to the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and their Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed is proposed to be incorporated therein by reference, and, subject to Section 4(afiled; (B) hereof, file such with when the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of Commission notifies the Company and the subsidiaries whether there will be a "review" of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and whenever the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to Commission comments in writing on such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
Registration Statement (m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company shall provide true and complete copies thereof and all written responses thereto to theSpecial counsel for the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration StatementHolders); provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firand
Appears in 1 contract
Sources: Securities Purchase Agreement (Irvine Sensors Corp/De/)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than ten Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act any document that would be incorporated therein by reference), the Company shall, upon request, afford promptly shall (i) furnish to the Holders of the Registrable Securities covered by such Registration StatementHolder and any Special Counsel, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated by reference) will be subject to the review of such Holders and such Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if anyany Special Counsel, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation within three Business Days of the Securities Act or other applicable lawtheir receipt thereof.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and any Special Counsel as promptly as possible (and, their counsel in the case of (i)(A) below, not less than five days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Business Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or -6- that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of of, or, if issued, obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority in interest of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Securities, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyany Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, to the extent requested by such Person and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyany Special Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if anyselling Holders, and their respective counsel any Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the 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 soldsold pursuant to a Registration Statement, which certificates shall not bear any be free of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringSecurities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(vi), as promptly as practicable possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be eligible for quotation on the National Association of Securities Dealers, Inc.'s OTC Bulletin Board (the "OTC Bulletin Board") and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the Company are then listed as and when required pursuant to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesPurchase Agreement.
(l) Enter into an underwriting agreement Comply in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no not later than forty-five (45) 45 days after the end of any 12-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) The Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails to furnish such information within 15 Business Days after receiving such request. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder has the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. The Holder covenants and agrees that (i) commencing at the end of it will not sell any fiscal quarter in which Registrable Securities are sold to an underwriter under the Registration Statement until it has received copies of the Prospectus as then amended or to underwriters supplemented as contemplated in a firm commitment or best efforts underwritten offering Section 3(g) and notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to the Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") reasonably determines not sold to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 15 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 30 days in the aggregate during any 365-day period; provided, however, that no such postponement or suspension shall be permitted for consecutive 15 day periods, arising out of the same set of facts, circumstances or transactions.
(o) At its sole discretion, add the Registrable Shares to any currently filed registration statement as an underwriter or amendment to underwriters said registration statement in order to save filing and legal costs in connection with the procurement of the Registration Statement, provided that the Company has a reasonable belief that the registration statement will be deemed effective in the appropriate time period, and further that it is not in any way violating any covenants with other investors in connection with such an offering, commencing on registration statement by adding the firRegistrable Shares to said registration statement.
Appears in 1 contract
Sources: Registration Rights Agreement (World Wide Wireless Communications Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, Purchasers and their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Purchasers and their counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of which Purchasers holding a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and comply with (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it Commission with respect to the disposition Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Purchasers true and complete copies of all securities covered by such correspondence from and to the Commission relating to the Registration Statement as so amended or in such prospectus as so supplementedStatement.
(c) Notify the Holders Purchasers of Registrable Securities, Securities to be sold and their counsel and the managing underwriter or underwriters, if any, as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day following such request, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus "review" of any Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such comments and of all written responses thereto); (iii) the Commission or any prospectus other Federal or state governmental authority requests any amendment or supplement or post-effective amendment has been filed, and, with respect to a any Registration Statement or any post-effective amendment, when Prospectus or requests additional information related thereto; (iv) the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; (vvi) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and ; or (vivii) of the Company's reasonable determination that a post- any Registration Statement or any post-effective amendment to such Registration Statement would be appropriateis declared effective.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests Purchaser and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyits counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel Purchaser and each underwriter, if anyits counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) use its best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, selling Purchasers and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Purchaser requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; providedby a Registration Statement, however, except that the Company will shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this clause (h), it is would not then be obligated to be so qualified, (B) take any action that would subject it qualified or to consent to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subjectjurisdiction.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above6.2(c)(vi), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC Commission.
(k) Cooperate with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Purchasers may request.
(l) Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities, including without limitation by making available any documents and information; provided that the Company will not deliver or make generally available to its security holders earnings statements satisfying any Purchaser material, nonpublic information unless such Purchaser specifically requests in advance to receive material, nonpublic information and such Purchaser agrees to maintain the provisions confidentiality of Section 11(a) such information and agrees not to sell or transfer any securities of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter Company except in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fircompliance with applicable law.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than two Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing the Initial or any such Demand Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall: (for registrations pursuant i) furnish to the Purchasers copies of those sections of the Initial or Demand Registration Statement or Prospectus proposed to be filed that relate to the Purchasers or the Transaction (such sections, the “Affected Sections”) and (ii) in the event that the Company proposes to revise any of the Affected Sections 2.1 and 2.2 hereof) in any amendment to the Initial or any Demand Registration Statement or any supplement to the Prospectus, furnish to the Purchasers copies of such revised Affected Sections. The Company shall not file the Initial or any Demand Registration Statement or any related Prospectus or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under if the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, Purchasers and their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure good faith to file any such amendment or supplement would involve a violation the Company’s proposed descriptions of the Securities Act Purchasers or other applicable lawthe Transaction set forth in the Affected Sections.
(b) Prepare (i) Use its commercially reasonable best efforts to prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Initial or any Demand Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Initial or Demand Registration Statement continuously effective as to the applicable Initial or Additional Registrable Securities for the time periods prescribed herebyInitial or Subsequent Effectiveness Period and prepare and file with the Commission such Initial or Demand Registration Statement in order to register for resale under the Securities Act all of the Initial or Additional Registrable Securities, as the case may be; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to the Initial or Demand Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Initial or Additional Registrable Securities covered by such the Initial or Demand Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Initial or Demand Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Initial or Additional Registrable Securities, their counsel Securities to be sold as promptly as reasonably possible and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment to the Initial or any Demand Registration Statement has been filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Initial or Demand Registration Statement and whenever the Commission comments in writing on any Affected Sections (in which case the Company shall provide true and complete copies of the Company’s proposed responses to the Commission’s comments on the Affected Sections to each of the Purchasers); and (C) with respect to a the Initial or any Demand Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Initial or any Demand Registration Statement or postProspectus or for additional information relating thereto; provided, however, that under no circumstances shall the Company be required to disclose material non-effective amendment including financial statements and schedules and exhibitspublic information in connection with the notice pursuant to this Section 3(c), ; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Initial or any Demand Registration Statement covering any or all of any order preventing the Initial or suspending the use of any preliminary prospectus Additional Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, ; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Initial or Additional Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements suspension of the Securities Act and it will not contain Initial or 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Demand Registration Statement would be appropriatepursuant to Sections 3 or 4(a).
(d) Use every its commercially reasonable effort best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Initial or any Demand Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Initial or Additional Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Holder may reasonably request; and, subject request in writing. Subject to any notice by the last paragraph of this Company in accordance with Section 43(c), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Initial or Additional Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(if) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Initial or Demand Registrable Securities to be solddelivered to a transferee pursuant to the Initial or any Demand Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Initial or Additional Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jg) Upon the occurrence of any event contemplated by Section 4(c)(v3(a)(x) or 4(c)(vi) aboveSection 4(a)(x), as the case may be, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Initial or any Demand Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Initial or any Demand Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(kh) Prior The Company may require each selling Holder to furnish to the effective date Company a certified statement as to the number of a Registration Statementshares of Common Stock beneficially owned by such Holder and, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably if requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicableCommission, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereundercontrolling person thereof.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Registration Rights Agreement (Nu Skin Enterprises Inc)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except as otherwise providedhereunder:
(a) Prepare and file with Each Holder agrees to furnish to the SEC Company a completed questionnaire in the form attached to this Agreement as soon as practicable each such Registration Statement Annex C (but in any event a “Selling Stockholder Questionnaire”) on or a date that is not less than two Trading Days prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement Filing Date or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders end of the Registrable Securities covered by fourth Trading Day following the date on which such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object H▇▇▇▇▇ receives draft materials in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawaccordance with this Section.
(b) Prepare The Company shall prepare and file with the SEC such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed hereby; Effectiveness Period and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424, (iii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to a Registration Statement or any similar provisions then amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the SEC relating to a Registration Statement (provided that, the Company shall excise any information contained therein which would constitute material non-public information regarding the Company or any of its Subsidiaries), and (iv) undertake reasonable efforts to comply in force) promulgated under the Securities Act; and comply all material respects with the applicable provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares constituting Registrable Securities then registered in a Registration Statement, file, as soon as reasonably practicable, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities, subject to SEC Guidance and the provisions of this Agreement.
(d) The Company shall notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than three Trading Days following the day (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 effective, (including in such notice ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)Prospectus or for additional information related to the applicable Holder, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any action or proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any action or proceeding for such purpose, (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any information which would be appropriateconstitute material, non-public information regarding the Company or any of its Subsidiaries.
(de) Use every The Company shall use its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish The Company shall furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent reasonably requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the SEC; provided, that any such item which is available on the E▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3 (d).
(h) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, or from time to time as reasonably requested by the Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such the registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; providedby each Registration Statement, however, provided that the Company will shall not be required to (Ai) qualify generally to do business in any jurisdiction where it is not then so qualified, (Bii) take become subject to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject subject, or (Ciii) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(i) Cooperate If requested by a Holder, the Company shall cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) Upon The Company shall use commercially reasonable efforts, upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(d), as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its shareholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is reasonably practicable.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the The Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) shall otherwise use commercially reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of under the Securities Act and the Exchange Act, including, without limitation, Rule 158 thereunder (or any similar rule promulgated 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
(l) no later than forty-five The Company may require each selling Holder to furnish to the Company a certified written statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the SEC, the natural persons thereof that have voting and dispositive control over the shares.
(45m) days The Company shall not be obligated to register or qualify the Conversion Shares and Warrant Shares in any state which applies merit review.
(n) Notwithstanding anything to the contrary contained in this Agreement (but subject to the last sentence of this Section 3(n)), at any time after the end Effective Date of a particular Registration Statement, the Company may, upon written notice to the Holders, suspend the Holders’ use of any 12-month period prospectus that is a part of any Registration Statement (in which event the Holders shall discontinue sales of the Registrable Securities pursuant to such Registration Statement contemplated by this Agreement, but shall settle any previously made sales of Registrable Securities) if the Company (x) is pursuing an acquisition, merger, tender offer, reorganization, disposition or other similar transaction and the Company determines in good faith that (A) the Company’s ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction in such Registration Statement or other registration statement or (B) such transaction renders the Company unable to comply with SEC requirements, in each case under circumstances that would make it impractical or inadvisable to cause any Registration Statement (or ninety such filings) to be used by the Holders or to promptly amend or supplement any Registration Statement contemplated by this Agreement on a post effective basis, as applicable, or (90y) has experienced some other material non-public event the disclosure of which at such time, in the good faith judgment of the Company, would materially adversely affect the Company (each, an “Allowable Grace Period”); provided, however, that in no event shall the Holders be suspended from selling Registrable Securities pursuant to any Registration Statement for a period that exceeds 45 calendar days after in any 365-day period. Upon disclosure of such information or the end termination of the condition described above, the Company shall provide prompt notice, but in any 12event within one Trading Day of such disclosure or termination, to the Holders and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated in this Agreement (including as set forth in the first sentence of Section 3(d) with respect to the information giving rise thereto unless such material, non-month period if such period public information is no longer applicable). Notwithstanding anything to the contrary contained in this Section 3(p), the Company shall cause its transfer agent to deliver shares of Common Stock to a fiscal year) transferee of a Holder in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold Company has made a sale to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering the Holders and (ii) the Holders has entered into a contract for sale, and delivered a copy of the Prospectus included as part of the particular Registration Statement to the extent applicable, in each case prior to the Holder’s receipt of the notice of an Allowable Grace Period and for which the Holder has not yet settled.
(o) For all purposes of this Agreement, any time requirements imposed upon the Company including with respect to filing, amending, supplementing and causing the effectiveness of Registration Statements shall be deemed modified to the extent that the Company’s inability to comply with the financial statement requirements under SEC Guidance after 45 days of a new fiscal year (the “Staleness Date”) until audited financial statements are filed for the prior fiscal year but in no event later than the time permitted by Rule 12b-25 under the Exchange Act (the “Form 10-K Deadline”). Any time between the Staleness Date and the Form 10-K Deadline (or such earlier date as the Company’s applicable Annual Report on Form 10-K has been filed with the SEC) shall be disregarded and not calculated in determining if not sold the Company has complied with its obligations under this Agreement. Provided, further, that if the Staleness Date causes a delay in filing a Registration Statement or updating a Prospectus an additional five Trading Days after a Form 10-K has been filed shall be added to an underwriter or to underwriters in such an offering, commencing on the firany time period.
Appears in 1 contract
Sources: Registration Rights Agreement (Splash Beverage Group, Inc.)
Registration Procedures. In connection with Whenever the obligations holders of the Company with respect to Registrable Securities request that any Registration Statement Registrable Securities be registered pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Agreement, the Company shallwill use reasonable commercial efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, except and pursuant thereto the Company will as otherwise providedexpeditiously as possible:
(a) Prepare prepare and file with the SEC as soon as practicable each a registration statement with respect to such Registration Statement (but in any event on or prior Registrable Securities and use reasonable commercial efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement registration statement to become effective and remain effective as (provided herein; provided, however, that within a reasonable time before filing any such Registration Statement a registration statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) prospectus or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)thereto, the Company shall, upon request, afford promptly will furnish to the Holders counsel selected by holders of the a majority of Registrable Securities covered by to be included in such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review registration copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant prompt review and reasonable comment of such counsel, and, as to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant the content relating to Section 2.1 hereof) if the Holders of a majority holders of the Registrable Securities covered by Securities, approval of such Registration Statementcounsel), their counseland upon filing such documents, or the managing underwriter or underwriters, if any, Company shall reasonably object promptly notify in writing unless failure such counsel of the receipt by the Company of any written comments by the SEC with respect to file such registration statement or prospectus or any such amendment or supplement would involve a violation of thereto or any written request by the Securities Act SEC for the amending or other applicable law.supplementing thereof or for additional information with respect thereto;
(b) Prepare promptly notify each holder of Registrable Securities of the effectiveness of each registration statement and any time a supplement to any prospectus forming a part of such registration statement has been filed, and prepare and file with the SEC such amendments and post- effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously registration statement effective for a period of not less than 180 days or, if such registration statement relates to an underwritten or directed (placement agency) offering, such longer period as, in the time periods prescribed hereby; opinion of counsel for the underwriters or placement agent, a prospectus is required by law to be delivered in connection with sales of Registrable Securities by any underwriter, placement agent or dealer or 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 as 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 such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement and cause the related Prospectus prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.;
(c) Notify the Holders furnish to each seller of Registrable SecuritiesSecurities included in the registration statement such number of copies of such registration statement, their counsel each amendment and supplement thereto, the managing underwriter or underwriters, if any, promptly prospectus included in such registration statement (but in any event within two (2) Business Daysincluding each preliminary prospectus), each amendment and confirm supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such notice other documents as such seller may reasonably request in writing, order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller 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 Company will not be required to (i) when a Prospectus or qualify generally to do business in any prospectus supplement or post-effective amendment has been filed, and, with respect jurisdiction where it would not otherwise be required to a Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)qualify but for this subsection, (ii) of the issuance by the SEC of subject itself to taxation in any stop order suspending the effectiveness of such Registration Statement jurisdiction where it would not otherwise be subject to taxation but for this subsection or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if consent to general service of process (i.e., service of process which is not limited solely to securities law violations) in any jurisdiction where it would not otherwise be subject to general service of process but for this subsection);
(e) promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required by the Securities Act to be delivered in connection with sales of under the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) belowAct, to the knowledge of the Company, cease is required to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdictionupdated, or (B) the initiation of any proceeding for such purpose, (v) upon discovery of the happening of any event, event as a result of which the existence of any condition or information becoming known that requires the making of any changes prospectus included in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any registration statement contains an untrue statement of a material fact or omit to state omits 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 conform in all material respects with the requirements of the Securities Act and 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, misleading in light of the circumstances under which they were made, not misleadingand, at the request of any such seller, the Company will, as soon as reasonably practicable, file and (vi) of the Company's reasonable determination that furnish to all sellers a post- effective supplement or amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of such Registrable Securities being sold thereunderSecurities, such Prospectus prospectus will not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleading.;
(kf) Prior to provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.registration statement;
(lg) Enter enter into an such customary agreements (including underwriting agreement agreements in customary form, scope and substance as is customary in underwritten offerings ) and take all such other actions as are the holders of Registrable Securities included in the registration or their underwriters or placement agent, if any, reasonably requested by the managing underwriter or underwriters request in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made Securities; provided that no holder of the Registrable Securities in accordance shall have any indemnification or contribution obligations inconsistent with this Agreement, and in such connection, Section 4 hereof;
(ih) make such representations and warranties to the underwriter or underwriters, with respect to the business available for inspection by any holder of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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, Registrable Securities included in the Registration Statementregistration, addressed or any of their underwriters or placement agents participating in any disposition pursuant to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing any attorney, accountant or other agent retained by any such holder or underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hoursplacement agent, all relevant financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of cause the Company, and cause the ’s officers, directors directors, employees and employees of the Company and the subsidiaries of the Company independent accountants to supply all information and participate in each case due diligence sessions reasonably requested by any such Person seller, its underwriter, placement agent, attorney, accountant or agent in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that registration;
(i) the disclosure of such information is necessary or advisable otherwise use reasonable commercial efforts to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement no later than the time required for filing the applicable periodic report, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder promulgated thereunder;
(j) use all reasonable commercial efforts to prevent the issuance of any stop order (“Stop Order”) suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, and, in the event of such issuance, the Company shall immediately notify the holders of Registrable Securities included in such registration statement of the receipt by the Company of such notification and shall use its best efforts promptly to obtain the withdrawal of such order;
(k) use all reasonable commercial 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;
(l) request one or more “cold comfort” letters, dated the effective date of such registration statement (and, if such registration includes an underwritten or directed (placement agency) Public Offering, dated the date of the closing under the underwriting or placement agency agreement), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter or lead placement agent may reasonably expect;
(m) request a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement) in customary form and covering such matters of the type customarily covered by legal opinions of such nature if requested by the managing underwriter or lead placement agent;
(n) If any such registration or comparable statement refers to any seller by name or otherwise as the seller of any securities of the Company and if in such seller’s sole and exclusive judgment, such seller is or might be deemed to be an underwriter or a controlling person of the Company, such seller shall have the right to (i) require the insertion therein of language, in form and substance satisfactory to such seller and presented to the Company in writing and not inconsistent with the rules and regulations of the SEC, to the effect that the holding by such seller of such securities is not to be construed as a recommendation by such seller of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such seller will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such seller by name or otherwise is not required by the Securities Act or any similar rule promulgated under federal statute then in force, require the Securities Act) no later than forty-five (45) days after deletion of the end of any 12-month period (or ninety (90) days after the end of any 12-month period if reference to such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold holder; provided, that with respect to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and this clause (ii), if requested by the Company, such seller shall furnish to the Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to the Company; and
(o) if not sold All expenses incident to an underwriter the Company’s performance of or to underwriters in such an offeringcompliance with this Agreement, commencing on including without limitation all Registration Expenses, will be borne by the firCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Root9B Technologies Inc.)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 under Section 2 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable a Shelf Registration Statement or Shelf Registration Statements on Form S-1 or Form S-3 or any other appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the reasonable methods of distribution specified in such Holders' Notices and Questionnaires and permitted by the form of selling securityholder questionnaire included in the Offering Memorandum (provided, however, that in no event shall such methods of distribution take the form of an underwritten offering of Registrable Securities without the Company's prior written consent, which the Company may withhold in its sole discretion), and use its commercially reasonable efforts to cause each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Shelf Registration Statement to become effective under the Securities Act and remain effective as provided herein; providedprovided that, however, that before filing any such Shelf Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under with the Exchange Act that would be incorporated therein by reference)SEC, the Company shall, upon request, afford promptly shall furnish to the Initial Purchasers and counsel for the Holders and the Initial Purchasers or, if designated, one separate counsel designated in writing to the Company by Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review ("Designated Counsel") copies of all such documents proposed to be filed a and use its commercially reasonable time prior efforts to reflect in each such document when so filed with the SEC such comments as the such counsel reasonably shall propose within two (2) Business Days of the delivery of such copies to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 Initial Purchasers and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective for until the time periods prescribed herebyexpiration of the Effectiveness Period, except to the extent permitted under Section 3(i); cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its commercially reasonable efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Shelf Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable, give notice to the Holders of Registrable SecuritiesNotice Holders, their the Initial Purchasers, counsel and for the managing underwriter or underwritersInitial Purchasers and, if anyapplicable, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, Designated Counsel (i) when a any Prospectus, Prospectus or any prospectus supplement supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed, filed with the SEC and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness of the Initial Shelf Registration Statement under the Securities Act, without charge, one conformed copy of such by the SEC or any other federal or state governmental authority for amendments or supplements to any Shelf Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Shelf Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, (v) after the effective date of any Shelf Registration Statement filed pursuant to this Agreement of the happening occurrence of (but not the nature of or details concerning) a Material Event and (vi) of the determination by the Company that a post-effective amendment to a Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension Notice, in which event the provisions of Section 3(i) shall apply.
(d) Subject to Section 3(i), use its commercially reasonable efforts to prevent the issuance of, and, if issued, to obtain the withdrawal of, any order suspending the effectiveness of a Shelf Registration Statement or the lifting of any eventsuspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide prompt notice to each Notice Holder and the Initial Purchasers of the withdrawal of any such order.
(e) If requested by the Initial Purchasers or any Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to a Shelf Registration Statement such information as the Initial Purchasers, counsel for the Initial Purchasers and, if applicable, Designated Counsel shall determine to be required to be included therein by applicable law and make any required filings of such Prospectus supplement or such post-effective amendment; provided, that the Company shall not be required to take any actions under this Section 3(e) that, in the written opinion of counsel for the Company, are not in compliance with applicable law.
(f) As promptly as practicable, furnish, upon request, to each Notice Holder and the Initial Purchasers, without charge, at least one (1) conformed copy of the Shelf Registration Statement and any 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 to the Company by such Notice Holder or the Initial Purchasers).
(g) During the Effectiveness Period, deliver to each Notice Holder and the Initial Purchasers as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and the Initial Purchasers may reasonably request; and the Company hereby consents (except during such periods that a Suspension Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder's offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf Registration Statement and the related Prospectus; provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of proceedings with respect to any Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any condition fact as a result of which any Shelf Registration Statement shall contain any untrue statement of a material fact or information becoming known that requires omit to state any material fact required to be stated therein or necessary to make the making statements therein not misleading, or any Prospectus shall 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, or (C) the occurrence or existence of any changes in such pending corporate development, including because the effectiveness or use of the Shelf Registration StatementStatement and the related Prospectus would require disclosure of confidential information or interfere with any financing, Prospectus acquisition, corporate reorganization or documents so other transaction or development (a "Material Event"), that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus (i) in the case of such Registration Statementclause (B) or (C) above, it will conform in all material respects with subject to the requirements of next sentence, as promptly as practicable, prepare and file, if necessary pursuant to the Securities Act Act, a post-effective amendment to such Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and it will Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and so that such Prospectus does 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 (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, subject to the Prospectusnext sentence, use its commercially reasonable efforts to cause it will conform in all material respects with the requirements of to be declared effective under the Securities Act as promptly as is practicable, and it (ii) give notice to the Notice Holders and counsel for the Holders and for the Initial Purchasers (or, if applicable, Designated Counsel) that the availability of the Shelf Registration Statement is suspended (a "Suspension Notice") and, upon receipt of any Suspension Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to such Shelf Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until such Notice Holder is advised in writing by the Company that the Prospectus may be used. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, the Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viz) in the case of clause (C) above, as soon as, in the reasonable discretion of the Company's reasonable determination that a post- effective amendment to , such suspension is no longer appropriate. The period during which the availability of the Shelf Registration Statement would and any Prospectus may be appropriate.
suspended (dthe "Suspension Period") Use every reasonable effort without the Company incurring any obligation to prevent pay additional interest pursuant to Section 2(e) shall not exceed (I) in any 90-day period, either sixty (60) days in the issuance aggregate, if during such 90-day period the Company delivers a second Suspension Notice pursuant to the last sentence of this Section 3(i), or forty-fivc (45) days in the aggregate, if the Company has not delivered such a second Suspension Notice, or (II) in any order suspending 360-day period, ninety (90) days in the effectiveness aggregate. The Effectiveness Period shall be extended by the number of days from and including the date of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any giving of the Registrable Securities covered thereby for sale Suspension Notice to and including the date on which the Notice Holder received copies of the supplemented or amended Prospectus provided in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
clause (ei) If requested by the managing underwriter or underwriters, if anyabove, or the Holders of a majority of the Registrable Securities being sold date on which it is advised in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after writing by the Company that the Prospectus may be used, and has received notification copies of the matters to be incorporated in such prospectus supplement any additional or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents supplemental filings that are incorporated or deemed to be incorporated therein by reference and all exhibits in such Prospectus. The Company may deliver a second Suspension Notice in accordance with clause (including exhibits incorporated by reference).
(gC) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, 3(i) in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event respect of a non-underwritten offeringMaterial Event relating to an acquisition, financing, recapitalization, business combination or other similar transaction or a probable acquisition, financing, recapitalization, business combination or other similar transaction as to which Material Event a Suspension Period is then in effect, which second Suspension Notice shall have the Holders effect of a majority extending the Suspension Period by 15 days or such shorter period of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition time as is specified in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringsecond Suspension Notice.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection during normal business hours by a representative of representatives for the Notice Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant broker-dealers, attorneys and accountants retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hoursNotice Holders, all relevant financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the appropriate officers, directors and employees of the Company and the its subsidiaries of the Company to supply make available for inspection during normal business hours all relevant information in each case reasonably requested by such representatives for the Notice Holders, or any such Person broker-dealers, attorneys or accountants in connection with such Registration Statementdisposition, in each case as is customary for similar "due diligence" examinations; provided, however, that all material non-public such persons shall first agree in writing with the Company that any information that is confidential at the time of delivery of such information shall be kept confidential by such Personpersons and shall be used solely for the purposes of exercising rights under this Agreement, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure filing of any information by such Person pursuant Shelf Registration Statement or the use of any Prospectus referred to clauses (ii) or in this Agreement), (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or failure to safeguard by any such Person, person or (iv) such information has been made generally becomes available to any such person from a source other than the public.
(n) Comply with Company and such source is not bound by a confidentiality agreement or is not otherwise under a duty of trust to the Company, and provided further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all applicable rules the Notice Holders and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if other parties entitled thereto by one counsel for such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firNotice Holder
Appears in 1 contract
Sources: Registration Rights Agreement (Playboy Enterprises Inc)
Registration Procedures. In connection with the Acquiror’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1hereunder, 2.2 and 2.6 hereof, the Company Acquiror shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than five (but in any event on or 5) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant supplement thereto, furnish to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Admitted Partners copies of all such documents proposed to be filed a reasonable time prior filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the proposed filing thereofreview of such Admitted Partners. The Company Acquiror shall not file any Registration Statement or Prospectus reflect in each such document when so filed with the SEC such comments regarding the Admitted Partners as the Admitted Partners may reasonably and promptly propose no later than three (for registrations pursuant to Sections 2.1 and 2.2 hereof3) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if Trading Days after the Holders Admitted Partners have been so furnished with copies of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments as aforesaid.
(bA) Prepare Subject to Section 29(a)(v), prepare and file with the SEC such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective effective, as to the applicable Conversion Shares for the time periods prescribed herebyEffectiveness Period and to comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of the Conversion Shares covered thereby during the applicable period; (B) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and comply with (C) respond as promptly as commercially reasonable, and in any event within ten (10) Trading Days (except to the provisions of the Securities Actextent that Acquiror reasonably requires additional time to respond to accounting comments), the Exchange Act and the rules and regulations of to any comments received from the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplementedany amendment thereto.
(ciii) Notify the Holders Admitted Partners as promptly as practicable of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly following events: (but in A) any event within two (2) Business Days), and 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 amendment is declared effective; (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (iiB) of the issuance by the SEC of issues any stop order suspending the effectiveness of such any Registration Statement or Statement; (C) Acquiror receives notice of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby Conversion Shares for offer or sale in any jurisdiction, ; or (BD) the initiation of financial statements included in any proceeding Registration Statement become ineligible for such purpose, (v) of the happening of inclusion therein or any event, the existence of any condition Registration Statement or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain other document contains 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(div) Use every its commercially reasonable effort efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (A) any order suspending the effectiveness of the any Registration Statement Statement, or (B) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby Conversion Shares for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicablecommercially reasonable.
(ev) If requested by the managing underwriter or underwritersan Admitted Partner, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment provide such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, Admitted Partner without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the SEC, which copy may be furnished in electronic form.
(gvi) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyAdmitted Partner, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company which copy may be furnished in electronic form. Acquiror hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Admitted Partners in connection with the offering and sale of the Registrable Securities Conversion Shares covered by such Prospectus and any amendment or supplement theretothereto in accordance with the terms thereof to the extent permitted by federal and state securities laws and regulations.
(hvii) (A) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Conversion Shares; (B) take all steps necessary to cause such Common Shares to be approved for listing on each Trading Market as soon as commercially reasonable thereafter; and (C) provide to each Admitted Partner evidence of such listing.
(viii) Prior to any public offering of Registrable SecuritiesConversion Shares, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel selling Admitted Partners in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities Conversion Shares for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Admitted Partner requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Conversion Shares covered therebyby a Registration Statement during the Effectiveness Period; provided, however, that the Company will Acquiror shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then otherwise so subject.
(iix) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Admitted Partners to facilitate the timely preparation and delivery of certificates representing Registrable Securities Conversion Shares to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement and under law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities certificates to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Admitted Partners may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jx) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above29(b)(iii)(D), as promptly as practicable commercially reasonable, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kxi) Prior Acquiror shall pay all fees and expenses incident to the effective date performance of a Registration Statementor compliance with Section 29 of this Agreement by Acquiror, including without limitation (A) all registration and filing fees and expenses, including without limitation those related to filings with the SEC, any Trading Market and in connection with applicable state securities or Blue Sky laws, (iB) provide the registrar for the Registrable Securities with printing expenses (including without limitation expenses of printing certificates for such securities Conversion Shares), (C) messenger, telephone and delivery expenses, (D) fees and expenses of all other Persons retained by Acquiror in a form eligible for deposit connection with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made consummation of the Registrable Securities in accordance with transactions contemplated by this Agreement, and in such connection, (iE) make such representations and warranties all listing fees to be paid by Acquiror to the underwriter or Trading Market. In no event shall Acquiror be responsible for discounts, commissions, fees of underwriters, with respect to the business of the Company and the subsidiaries of the Companyselling brokers, and the Registration Statementdealer managers or similar securities industry professionals, Prospectus and documents, if any, incorporated fees or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions disbursements of counsel to the Company and updates thereof, addressed Admitted Partners or any fees for filings required to be made with FINRA in connection with the underwriter or underwriters covering sale of Conversion Shares by the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; Admitted Partners.
(iiixii) Acquiror shall use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of under the Securities Act and the Exchange Act, including, without limitation, Rule 158 thereunder (or any similar rule promulgated 172 under the Securities Act) no later than forty-five (45) days after , file any final Prospectus, including any supplement or amendment thereof, with the end SEC pursuant to Rule 424 under the Securities Act, promptly inform the Admitted Partners in writing if, at any time during the Effectiveness Period, Acquiror does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Admitted Partners are required to make available a Prospectus in connection with any disposition of any 12-month period (or ninety (90) days after Conversion Shares and take such other actions as may be reasonably necessary to facilitate the end registration of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firConversion Shares hereunder.
Appears in 1 contract
Sources: Contribution Agreement (Gramercy Property Trust Inc.)
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than two trading days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Stockholder and the managing underwriter or underwriters, if any, an opportunity to review Selling Stockholders copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of the Stockholder and Selling Stockholders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to the Stockholder, to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond promptly to any comments received from the SEC with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and promptly provide the Securities ActStockholder and the Selling Stockholders true and complete copies of all correspondence from and to the SEC relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it Exchange Act, with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Selling Stockholders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders Stockholder and the Selling Stockholders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel and pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the managing underwriter or underwriters, if any, use of the Prospectus until the requisite changes have been made) promptly (but and, in any event within the case of (i)(A) below, not less than two trading days prior to such filing) (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the SEC notifies the Company whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to the Stockholder and each of the Selling Stockholders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such allow continued availability of the Registration Statement would be appropriateor Prospectus; provided that any and all of such information shall remain confidential to the Stockholder and each Selling Stockholder until such information otherwise becomes public, unless disclosure by the Stockholder or a Selling Stockholder is required by law.
(d) Use every reasonable effort Promptly deliver to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities Stockholder and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anySelling Stockholder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, Selling Stockholders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(he) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter Stockholder or underwriters reasonably request any Selling Stockholder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(if) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Selling Stockholders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Selling Stockholders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jg) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above4.3, as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Selling Stockholders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiivi) of this sentence Section 4.3(c) above to permit suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Selling Stockholders of its election to obtain suspend the availability of a protective order Registration Statement and Prospectus pursuant to clause (or waive vi) of Section 4.3(c), then the provisions of this paragraph (m)) and that such Person Selling Stockholders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (if practicablevi) of Section 4.3(c), the Company shall not be required to the extent take such action is otherwise not inconsistent with, an impairment of or in derogation until such time as it shall determine that the continued availability of the rights Registration Statement and Prospectus is no longer not in the best interests of the Holder or any such Person, or (ivCompany. The Company shall be entitled to exercise its right under this Section 4.3(g) such information has been made generally available to suspend the publicavailability of a Registration Statement and Prospectus.
(nh) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) SEC.
(i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or Use its best efforts underwritten offering and to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) if not sold any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(j) The Company may require each Selling Stockholder to an underwriter or furnish to underwriters in the Company a statement as to the number of shares of Common Stock beneficially owned by such an offering, commencing on Selling Stockholder and the fircontrolling person thereof. The Stockholder shall cause each Selling Stockholder to agree to furnish such information.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness allow continued availability of the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder's agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(d) above to permit suspend the Company use of the use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) USE ITS BEST EFFORTS TO AVOID THE ISSUANCE OF, OR, IF ISSUED, OBTAIN THE WITHDRAWAL OF (I) ANY ORDER SUSPENDING THE EFFECTIVENESS OF A REGISTRATION STATEMENT, OR (II) ANY SUSPENSION OF THE QUALIFICATION (OR EXEMPTION FROM QUALIFICATION) OF ANY OF THE REGISTRABLE SECURITIES FOR SALE IN ANY JURISDICTION, AT THE EARLIEST PRACTICABLE MOMENT.
(k) The Company may require, at any time prior to its security holders earnings statements satisfying the provisions third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Commission, the controlling person thereof, within three Trading days of the Securities Act and Rule 158 thereunder (or Company's request. During any similar rule promulgated under periods that the Securities Act) no later than forty-five (45) days after Company is unable to meet its obligations hereunder with respect to the end registration of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company's request, any liquidated damages that are sold accruing as to an underwriter or such Holder at such time shall be tolled and any Event that may otherwise occur as to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold such Holder solely because of such delay shall be suspended, until such information is delivered to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of hereunder, the Company with respect shall:
(a) Not less than five Trading Days prior to any the filing of a Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of and Special Counsel for the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Holders copies of all such documents proposed to be filed filed, other than exhibits to any such filing, which documents will be subject to the review of such Holders and their Special Counsel, provided that the Holders and Special Counsel shall conduct such review within a reasonable time prior period after their receipt of such documents, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the proposed filing thereofreasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by and their Special Counsel shall reasonably object; provided that the Holders and their Special Counsel shall have provided any comments or objection to such Registration StatementStatement or Prospectus, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve within a violation reasonable time period after it was provided to them. The Company shall provide copies of all documents incorporated or deemed incorporated by reference in any Registration Statement or any related Prospectus to the Securities Act Holders and Special Counsel promptly after they are filed with the Commission, or other applicable lawif filed prior to the date hereof, promptly upon request from the Holders or Special Counsel.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements as shall be necessary to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within fifteen Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and their Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to the Holders and Special counsel for the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in such Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anytheir Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, and their counsel and each underwriter, if anySpecial Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon Subject to any related Blackout Periods, upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither such Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require each selling Holder to its security holders earnings statements satisfying furnish to the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) Company (i) commencing at a certified statement as to the end number of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering shares of Common Stock beneficially owned by such Holder, and if requested by the Commission, the controlling person thereof, and (ii) if not sold to an underwriter a description of any material relationship between such Holder and the Company, its predecessors or to underwriters in such an offeringaffiliates, commencing on within the firpast three years.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, and their counsel and the managing underwriter or underwriters, if any, an opportunity to review Special Counsel copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, and their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within fifteen Trading Days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and their Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anytheir Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, however, if the Registration Statement is on Form S-3, then the Company shall not be obligated to provide copies of any financial statements incorporated by reference therein, but only to the extent that such financial statements have been previously filed with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, and their counsel and each underwriter, if anySpecial Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto and each Holder agrees to comply with the prospectus delivery requirements in accordance with the Securities Act in connection with sales made by such Holder of the Registrable Securities.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, howeverPROVIDED, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any -6- be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require, at any time prior to its security holders earnings statements satisfying the provisions third Trading Day prior to the Filing Date, each selling Holder to furnish to the Company a certified statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Commission, the controlling person thereof, within three Trading Days of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCompany's request.
Appears in 1 contract
Sources: Registration Rights Agreement (Peregrine Pharmaceuticals Inc)
Registration Procedures. In connection with the obligations 4.1. Obligations of the Company. Whenever the Company with respect is required to any Registration Statement effect the registration of Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 and 2.6 hereofSection 2 of this Agreement, the Company shall, except as otherwise providedexpeditiously as possible:
(a) Prepare prepare and file with the SEC as soon as practicable each such the requisite Registration Statement (but to effect such registration, which Registration Statement shall comply as to form in any event on or prior all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and the date of filing thereof required under this Agreement) and Company shall use its best efforts to cause such Registration Statement to become effective and remain effective as provided herein(provided, that the Company may discontinue any registration of its securities that are not Registrable Securities, and, under the circumstances specified in Sections 2.3 or 2.7, its securities that are Registrable Securities); provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall (i) provide Holders’ Counsel and any other Inspector with an adequate and appropriate opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein (and each amendment or supplement thereto or comparable statement) to be filed with the SEC, which documents shall be subject to the review and comment of Holders’ Counsel, and (ii) not file any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation thereto or comparable statement) with the SEC to which Holder’s Counsel, any selling Holder or any other Inspector shall have reasonably objected on the grounds that such filing does not comply in all material respects with the requirements of the Securities Act or other applicable law.of the rules or regulations thereunder;
(b) Prepare prepare and file with the SEC such amendments and post- effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplementeffective, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all Registrable Securities covered by such Registration Statement;
(c) furnish, without charge, to each selling Holder of such Registrable Securities and each Underwriter, if any, of the securities covered by such Registration Statement, such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), and the Prospectus included in such Registration Statement (including each preliminary Prospectus) in conformity with the requirements of the Securities Act, and other documents, as such selling Holder and Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such selling Holder (the Company hereby consenting to the use in accordance with applicable law of each such Registration Statement (or amendment or post-effective amendment thereto) and each such Prospectus (or preliminary prospectus or supplement thereto) by each such selling Holder of Registrable Securities and the Underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement or Prospectus);
(d) prior to any public offering of Registrable Securities, use its best efforts to register or qualify all Registrable Securities and other securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions in the United States as so amended or in such prospectus as so supplemented.
(c) Notify the Holders any selling Holder of Registrable Securities, their counsel and Securities covered by such Registration Statement or the sole or lead managing underwriter or underwritersUnderwriter, if any, promptly may reasonably request to enable such selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such selling Holder and to continue such registration or qualification in effect in each such jurisdiction for as long as such Registration Statement remains in effect (but in any event within two (2) Business Daysincluding through new filings or amendments or renewals), and confirm do any and all other acts and things which may be necessary or advisable to enable any such notice selling Holder to consummate the disposition in writingsuch jurisdictions of the Registrable Securities owned by such selling Holder; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4.1(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction;
(e) use its best efforts to obtain all other approvals, consents, exemptions or authorizations from such governmental agencies or authorities as may be necessary to enable the selling Holders of such Registrable Securities to consummate the disposition of such Registrable Securities;
(f) promptly notify Holders’ Counsel, each Holder of Registrable Securities covered by such Registration Statement and the sole or lead managing Underwriter, if any: (i) when a the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, filed and, with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the SEC or any state securities or blue sky authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits)the Prospectus related thereto or for additional information, (iiiii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening threat of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer sale under the securities or sale in blue sky laws of any jurisdiction, jurisdiction or (B) the initiation of any proceeding for such purpose, (v) of the existence of any fact of which the Company becomes aware or the happening of any eventevent which results in (A) the Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statements therein not misleading, or (B) the existence of any condition or information becoming known that requires the making of any changes Prospectus included in such Registration Statement, Prospectus Statement containing an untrue statement of a material fact or documents so thatomitting to state a material fact required to be stated therein or necessary to make any statements therein, in the case light of such Registration Statementthe circumstances under which they were made, it will conform not misleading, (vi) if at any time the representations and warranties contemplated by Section 2.5(b) cease to be true and correct in all material respects with the requirements respects, and (vii) of the Securities Act Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate or that there exists circumstances not yet disclosed to the public which make further sales under such Registration Statement inadvisable pending such disclosure and it will post-effective amendment; and, if the notification relates to an event described in any of the clauses (ii) through (vii) of this Section 4.1(f), the Company shall promptly prepare a supplement or post-effective amendment to such Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that (1) such Registration Statement shall not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi2) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will 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, therein in the light of the circumstances under which they were made, made not misleading.
misleading (k) Prior and shall furnish to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for each such securities in a form eligible for deposit with DTC Holder and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documentseach Underwriter, if any, incorporated a reasonable number of copies of such Prospectus so supplemented or deemed amended); and if the notification relates to be incorporated by reference therein, an event described in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; clause (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of this Section 4.1(f), the Company (and, if applicable, the subsidiaries 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 shall take all reasonable action required to be, included in prevent the Registration Statement, addressed entry of such stop order or to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) remove it if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.entered;
(mg) Make make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition selling Holder of Registrable Securities, if anyany sole or lead managing Underwriter participating in any disposition pursuant to such Registration Statement, Holders’ Counsel and any attorney attorney, accountant or accountant other agent retained by any such representative of seller or any Underwriter (each, an “Inspector” and, collectively, the Holders or underwriter, at the offices where normally kept, during reasonable business hours“Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any subsidiaries thereof as may be in existence at such time (collectively, the subsidiaries “Records”) as shall be necessary, in the opinion of such Holders’ and such Underwriters’ respective counsel, to enable them to exercise their due diligence responsibility and to conduct a reasonable investigation within the meaning of the Securities Act, provided that such parties agree to keep such information confidential, and cause the Company’s and any subsidiaries’ officers, directors and employees, and the independent public accountants of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Inspectors in connection with such Registration Statement; provided;
(h) if requested by the Majority Holders of the Registration in connection with an Underwritten Offering, howeverobtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such Registration Statement, that all material non-in each case dated the the date of the closing under the underwriting agreement, in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public information offerings, which opinion and letter shall be kept confidential by such Person, except reasonably satisfactory to the extent that sole or lead managing Underwriter and to the Majority Holders of the Registration, and furnish to each Holder participating in the offering and to each Underwriter a copy of such opinion and letter addressed to such Holder (in the case of the opinion) and Underwriter (in the case of the opinion and the “cold comfort” letter);
(i) provide a CUSIP number for all Initial Holder Warrants and 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 disclosure effectiveness of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.Statement;
(nj) Comply otherwise use its best efforts to comply with all applicable rules and regulations of the SEC and any other governmental agency or authority having jurisdiction over the offering, and make generally available to its security holders holders, as soon as reasonably practicable but no later than 90 days after the end of any 12-month period, an earnings statements satisfying statement (i) commencing at the end of any month in which Registrable Securities are sold to Underwriters in an Underwritten Offering and (ii) commencing with the first day of the Company’s calendar month next succeeding each sale of Registrable Securities after the effective date of a Registration Statement, which statement shall cover such 12-month periods, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder;
(k) if so requested by the Majority Holders of the Registration, use its best efforts to cause all such Common Shares that are Registrable Securities to be listed on each national securities exchange on which the Company’s Common Shares are then listed;
(l) keep each selling Holder of Registrable Securities advised in writing as to the initiation and progress of any registration under Section 2 hereunder;
(m) enter into and perform customary agreements (including, if applicable, an underwriting agreement in customary form) and provide officers’ certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable Securities and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA and make reasonably available its employees and personnel and otherwise provide reasonable assistance to the Underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in the marketing of Registrable Securities in any Underwritten Offering;
(o) if so requested, furnish to each Holder participating in the offering and the sole or lead managing Underwriter, if any, without charge, at least one conformed copy of the Registration Statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those deemed to be incorporated by reference);
(p) cooperate with the selling Holders of Registrable Securities and the sole or lead managing Underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the Underwriters or, if not an Underwritten Offering, in accordance with the instructions of the selling Holders of Registrable Securities at least three business days prior to any sale of Registrable Securities;
(q) if requested by the sole or lead managing Underwriter or any similar rule promulgated under selling Holder of Registrable Securities, immediately incorporate in a prospectus supplement or post-effective amendment such information concerning such Holder of Registrable Securities, the Securities Act) no later than forty-five (45) days after Underwriters or the end intended method of any 12-month period (distribution as the sole or ninety (90) days after lead managing Underwriter or the end selling Holder of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are reasonably requests to be included therein and as is appropriate in the reasonable judgment of the Company, including, without limitation, information with respect to the number of shares of the Registrable Securities being sold to an underwriter the 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; make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to underwriters be incorporated in a firm commitment such Prospectus supplement or post-effective amendment; and supplement or make amendments to any Registration Statement if requested by the sole or lead managing Underwriter of such Registrable Securities; and
(r) use its best efforts underwritten offering to take all other steps necessary to expedite or facilitate the registration and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on disposition of the firRegistrable Securities contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment, or supplements thereto (only not less than one Business Day for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)any supplement thereto, the Company shallshall furnish to each Purchaser and any counsel designated by any Purchaser (each, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review a "PURCHASER COUNSEL") copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereoffiled. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of which Purchasers holding a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure writing, prior to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawcontemplated filing date.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten Business Days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, at the Securities Actrequest of any Purchaser, as promptly as reasonably possible provide such Purchaser who may so request true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchasers thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, each Purchaser Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Business Day thereafter, of any of the following events: (i) when the initial filing of the Registration Statement with the Commission; (ii) the Commission notifies the Company whether there will be a Prospectus or "review" of any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement; (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding Proceeding; or (vi) the financial statements included in any Registration Statement become ineligible for such purpose, (v) of the happening of inclusion therein or any event, the existence of statement made in any condition Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicablepossible.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests Purchaser and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyPurchaser Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities, ; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; and (iii) maintain the listing of such Registrable Securities on each such Trading Market.
(g) Use commercially reasonable efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, selling Purchasers and their respective counsel Purchaser Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Purchaser reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it or consent to general service of process in any such jurisdiction where in which it is not then now so subject qualified or (C) become subject to taxation in any jurisdiction where it is has not then so subjectconsented.
(ih) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Purchasers may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above6.2(c)(vii), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities Cooperate with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested any due diligence investigation undertaken by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters Purchasers in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition sale of Registrable Securities, if anyincluding, and without limitation, by making available any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of information; provided that the Company and the subsidiaries of the Companywill not deliver or make available to any Purchaser material, and cause the officersnonpublic information unless such Purchaser specifically requests in advance to receive material, directors and employees of the Company and the subsidiaries of the Company to supply all nonpublic information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicwriting.
(nk) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pico Holdings Inc /New)
Registration Procedures. In connection with the obligations registration of the Company with respect to any Registration Statement offer and sale of Registrable pursuant to Sections 2.1, 2.2 and 2.6 hereofSection 2, the Company shallshall use its commercially reasonable efforts to effect the registration of the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method of disposition thereof, except and pursuant thereto the Company shall as otherwise providedsoon as reasonably practicable and as applicable:
(a) Prepare subject to Section 2, prepare and file with the SEC as soon as practicable each such Commission a Registration Statement (but in any event on or prior covering such Registrable Securities and use its commercially reasonable efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.declared effective;
(b) Prepare prepare and file with the SEC Commission such amendments, post-effective amendments and post- effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for until the time periods prescribed hereby; cause first anniversary of the related Prospectus date of this Agreement, or if earlier, until all of such Registrable Securities have been disposed of and to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registrable Securities in accordance with the intended methods of disposition set forth in such Registration Statement as so amended or in such prospectus as so supplemented.Statement;
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any reasonable time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in before filing such Registration Statement, Prospectus or amendments or supplements thereto with the Commission, furnish to one counsel selected by holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to the review, comment and reasonable approval of such counsel;
(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 selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or amendment to such Prospectus so that, in as thereafter delivered to the case purchasers of such Registration StatementRegistrable Securities, it will conform in all material respects with the requirements of the Securities Act and it will such Prospectus shall not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ;
(g) provide a transfer agent and registrar (viwhich may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(h) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Company's reasonable determination that a post- effective amendment to Common Stock is then listed or;
(i) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement would be appropriate.or Prospectus or for additional information;
(dj) Use every 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 commercially reasonable effort efforts to prevent the issuance of any stop order suspending or to obtain its withdrawal at the effectiveness of earliest possible moment if such stop order should be issued;
(k) cooperate with the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any holders of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold, which certificates shall not bear sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable representing such Registrable Securities to be in such denominations number of shares of Common Stock and registered in such names as the managing underwriter or underwriters, if any, or Holders holders of the Registrable Securities may reasonably request at least two Business Days a reasonable period of time prior to any sale sales of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment pursuant to the such Registration Statement or a supplement to Rule 144; provided, that the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with Company may satisfy its obligations hereunder without issuing physical stock certificates through the SEC so that, as thereafter delivered to the purchasers use of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a The Depository Trust Company’s Direct Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.System;
(l) Enter into an underwriting agreement in formtake no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, scope and substance as that, to the extent that any prohibition is customary in underwritten offerings and applicable to the Company, the Company will take all reasonable action to make any such prohibition inapplicable; and
(m) otherwise use its commercially reasonable efforts to take all other actions as are reasonably requested by the managing underwriter or underwriters in order steps necessary to expedite or facilitate effect the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereundercontemplated hereby.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Marine Exploration Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than two Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, and their counsel and the managing underwriter or underwriters, if any, an opportunity to review Special Counsel copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, and their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold and their Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anytheir Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, and their counsel and each underwriter, if anySpecial Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require each selling Holder to its security holders earnings statements satisfying furnish to the provisions Company a certified statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Securities Act and Rule 158 thereunder (or any similar rule promulgated under Commission, the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fircontrolling person thereof.
Appears in 1 contract
Registration Procedures. In connection with the obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofStatement, the Company shallshall effect such registrations to permit the offering and sale of the Registrable Securities in accordance with the intended method or methods of disposition thereof, except and pursuant thereto the Company shall as otherwise providedexpeditiously as possible:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") that would be incorporated therein by reference), the Company shall, upon request, shall afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, Statement their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereofthereof and the Company shall give reasonable consideration in good faith to any comments of such Holders, counsel and underwriters; provided that the Company may discontinue any registration of its securities giving rise to registration rights pursuant to Section 2.2 hereof at any time prior to the effective date of the registration statement relating thereto. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawwriting.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, supplement and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply in all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Registration Rights Agreement (Pca International Inc)
Registration Procedures. In connection with the Company's registration obligations hereunder, the Company shall:
(a) Not less than two Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review Special Counsel copies of all such documents proposed to be filed which documents will be subject to the review of such Holders and the Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of the Special Counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, Special Counsel shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwritersSpecial Counsel as promptly as reasonably possible (and, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all Registration Rights Agreement written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.. Registration Rights Agreement
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) The Company may require each selling Holder to its security holders earnings statements satisfying furnish to the provisions Company a certified statement as to the number of Section 11(a) shares of Common Stock beneficially owned by such Holder and, if requested by the Securities Act and Rule 158 thereunder (or any similar rule promulgated under Commission, the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fircontrolling person thereof.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statement in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than two Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to request in connection with resales by the last paragraph Holder of this Section 4, the Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available to its security holders earnings statements satisfying dispositive control over the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firShares.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(ciii) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 130% of the number of such Registrable Securities.
(iv) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel and the managing underwriter or underwriters, if any, promptly pursuant to clauses (but in any event within two ii) through (2vi) Business Daysof this Section 5.13(c)(iv), shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; PROVIDED, FURTHER, notwithstanding each Holder's agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(ev) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hvi) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ivii) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jviii) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above5.13(c), as promptly as practicable reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kii) Prior through (vi) of Section 5.13(c)(iv) above to suspend the effective date use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to suspend the availability of a Registration StatementStatement and Prospectus pursuant to clause (vi) of Section 5.13(c)(iv), (i) provide then the registrar for Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance use of the Prospectus may be resumed as promptly as is customary practicable, except that in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition case of such Registrable Securities in any underwritten offering to be made suspension of the Registrable Securities in accordance with this Agreementavailability of a Registration Statement and Prospectus pursuant to clause (vi) of Section 5.13(c)(iv), and in the Company shall not be required to take such connection, (i) make action until such representations and warranties to time as it shall determine that the underwriter or underwriters, with respect to the business continued availability of the Company Registration Statement and Prospectus is no longer not in the subsidiaries best interest of the Company. Notwithstanding the Company's right to suspend the use of the prospectus hereunder, and the Company shall remain liable to the Holders pursuant to Section 5.13(b) for any suspensions of the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 Statement hereunder which financial statements and financial data are, or are required to be, included in the Registration Statement, addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required otherwise require payment thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nix) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(x) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(xi) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any a Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in good faith, provided that, the Company is notified of such objection in writing unless failure to file any no later than 5 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) (i) Subject to clause (ii) below, if during the Effectiveness Period, the number of Registrable Securities at any time exceeds 90% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 110% of the number of such Registrable Securities.
(ii) In addition, in the event that all Registrable Securities are not included on the initial Registration Statement as contemplated by the last three sentences of the definition of Registrable Securities above, then upon written request of a majority in interest of the Holders, the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 110% of the number of such Registrable Securities, but in no event shall such additional Registration Statement be filed less than 30 days after the Effective Date of the initial Registration Statement filed hereunder.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, and, but not information which the Company believes would constitute material and non-public information); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement would be appropriateor Prospectus; provided that any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the Holders make no acknowledgement that any such information is material, non-public information.
(de) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject request in connection with resales by the Holder of Registrable Securities. Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(d).
(h) If NASDR Rule 2710 requires any broker-dealer to make a filing prior to executing a sale by a Holder, the Company shall (i) make an Issuer Filing with the NASDR, Inc. Corporate Financing Department pursuant to proposed NASDR Rule 2710(b)(10)(A)(i), (ii) respond within five Trading Days to any comments received from NASDR in connection therewith, (iii) and pay the filing fee required in connection therewith.
(i) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ij) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jk) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kii) Prior through (vi) of Section 3(d) above to suspend the effective date use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(k) to suspend the availability of a Registration StatementStatement and Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (iwhich need not be consecutive days) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesany 12 month period.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC Commission.
(m) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available dispositive control over the Shares. During any periods that the Company is unable to meet its security holders earnings statements satisfying obligations hereunder with respect to the provisions of Section 11(a) registration of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated damages that are sold accruing at such time as to an underwriter or such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold such Holder only, until such information is delivered to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant supplement thereto, furnish via email to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), those Significant Investors who have supplied the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review with email addresses copies of all such documents proposed to be filed a reasonable time prior filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the proposed filing thereofreview of such Significant Investors. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 reflect in each such document when so filed with the SEC such comments regarding the Significant Investors and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders plan of a majority distribution as the Significant Investors may reasonably and promptly propose no later than two Trading Days after the Significant Investors have been so furnished with copies of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments as aforesaid.
(bi) Prepare Subject to Section 6.1(e), prepare and file with the SEC such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the SEC with respect to the Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Investors thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Significant Investors as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by the Significant Investors) confirm such notice in writingwriting no later than two Trading Days thereafter, of any of the following events: (i) when the SEC notifies the Company whether there will be a Prospectus or “review” of any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement; (ii) the SEC comments in writing on any Registration Statement; (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that SEC or any Holder may, upon request, obtain, without charge, one conformed copy of such other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat in writing of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of any event, the existence of any condition Registration Statement or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain contains 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its reasonable effort Best Efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicablepossible.
(e) If requested by the managing underwriter or underwritersan Investor, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment provide such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyInvestor, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the SEC.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyInvestor, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market any applicable additional shares listing application covering all of the Registrable Securities, (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter, and (iii) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Common Shares on each such Trading Market.
(h) Prior to any public offering of Registrable Securities, use its reasonable Best Efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel selling Investors in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Investor requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement and under law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Investors may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) Upon the occurrence of any event contemplated by described in Section 4(c)(v) or 4(c)(vi) above6.2(c)(vii), subject to Section 6.1(e), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities, including, without limitation, by making available documents and information; provided that the Company will not knowingly deliver or make available to the effective date of a Registration Statementany Investor material, (i) provide the registrar for the Registrable Securities with certificates for nonpublic information unless such securities Investor requests in a form eligible for deposit with DTC advance in writing to receive material, nonpublic information and (ii) provide a CUSIP number for agrees to keep such securitiesinformation confidential.
(l) Enter into an underwriting agreement Comply in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC and make generally available applicable to its security holders earnings statements satisfying the provisions of Section 11(a) registration of the Registrable Securities.
(m) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12particular Investor or to make any Event Payments set forth in Section 6.1(d) to such Investor that such Investor furnish to the Company the information specified in Exhibits B-▇, ▇-month period (or ninety (90) days after ▇ and B-3 hereto and such other information regarding itself, the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold and other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit C hereto) as shall be reasonably required to an underwriter effect the registration of such Registrable Securities, including, without limitation, requested by the SEC in connection with any review of the Registration Statement or to underwriters otherwise, and shall complete and execute such documents in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in connection with such an offering, commencing on registration as the firCompany may reasonably request.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than two (2) Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the Holder informs the Company that the number of Registrable Securities at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or of any order preventing Prospectus; provided, however, that (a) notwithstanding anything to the contrary provided herein or suspending elsewhere, shall require the use of a Prospectus or suspending the qualification (or exemption from qualification) of Company and/or any of its affiliates, agents, officers, directors and/or employees to violate any law, rule, regulation and/or fiduciary duty, and (b) any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder's agreement to keep such information confidential, the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(d) above to permit suspend ---------------------------------------- the Company use of the use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the extent such action is otherwise not inconsistent withavailability of a ------------ Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to ------------ exceed 60 days (which need not be consecutive days) in any 12 month period.
(ni) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company (i) a statement as to the number of shares of Common Stock beneficially owned by such Holder, (ii) a selling shareholder questionnaire as provided by the Company and attached hereto as Annex B, and, (iii) if not sold requested ------- by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled as to such Holder only and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement Not less than two (but in any event on or 2) Business Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto supplement thereto, (only for registrations pursuant to Section 2.1 hereofi) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such person and not already filed by the Company with the Commission) which documents will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective legal counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure good faith; provided, however, that any period of time which the Registration Statement is delayed due to file any such amendment or supplement would involve a violation wilful breach of this Agreement by the Securities Act or other applicable lawCompany will be added to the Effectiveness Date.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the Registrable Securities for the time periods prescribed herebyEffectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under the Securities Actamendment thereto; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel and in the managing underwriter or underwriterscase of (i)(A) below, if any, promptly (but in any event within not less than two (2) Business Days), Days prior to such filing) and (if requested by any such person) confirm such notice in writing, writing promptly following the day (i) (A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto as promptly as reasonably possible to each of the Holders who so requests provided such requesting Holders agree to keep such information confidential until it is publicly disclosed); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and misleading (vi) provided that such Holder of the Company's reasonable determination that a post- effective amendment Registrable Securities agrees to keep such Registration Statement would be appropriateinformation confidential until it is publicly disclosed).
(d) Use every reasonable effort its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If To the extent requested by the managing underwriter or underwriterssuch Holders, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and schedules promptly after the filing of all such documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference)with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons persons may reasonably request; and, subject to request in connection with resales by the last paragraph Holder of this Section 4, the Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any offering of Registrable Securities, Use its commercially reasonable best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority to keep each of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee that were validly sold pursuant to an effective Registration Statement, which certificates shall not bear any be free, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior . The Company may require each selling Holder to furnish to the effective date Company a certified statement as to the number of a shares of Common Stock beneficially owned by such Holder and the person thereof that has voting and dispositive control over the Shares, for purposes of disclosure in the "Selling Stockholder" table in the Registration Statement. To the extent that either of the Investors propose to sell, (i) provide transfer or otherwise dispose of the registrar for Shares in an underwritten offering, the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC Company and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in formeach of SALT and SSH, scope as applicable, agree to negotiate and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by agree the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition terms of such Registrable Securities in any underwritten offering to be made at such time in good faith, including the selection of the Registrable Securities in accordance with this Agreementunderwriter(s), and in such connection, (i) make such representations and warranties which shall be agreeable to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderparticipating Investors.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Registration Rights Agreement (Scorpio Tankers Inc.)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Not less than three Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish to each Holder copies of the “Selling Stockholders” section of such document, the “Plan of Distribution” and any risk factor contained in such document that addresses specifically this transaction or the Selling Stockholders, as proposed to be filed, which documents will be subject to the review of such Holder. The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which the “Selling Stockholder” section thereof differs from the disclosure received from a Holder in its Selling Holder Questionnaire (as amended or supplemented), except as may otherwise be required by applicable securities law or the Commission.
(i) Prepare and file with the SEC as soon as practicable Commission such amendments, including post-effective amendments, to each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object used in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the time periods prescribed herebyCommission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to each Registration Statement or any similar provisions then amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as Selling Stockholders but not any comments that would result in force) promulgated under the Securities Actdisclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement as so amended or in such prospectus as so supplementedStatement.
(c) Notify the Holders as promptly as reasonably possible (and, in the case of Registrable Securities(i)(A) below, their counsel not less than three Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing as promptly as reasonably possible (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on any Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, and, but not information which the Company believes would constitute material and non-public information); and (C) with respect to a each Registration Statement or any post-effective amendment, when the same has become effective been declared effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information that pertains to the Holders as Selling Stockholders or the Plan of Distribution; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in such Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration StatementStatement or the Prospectus, it will conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that (in the case of the any Prospectus, it will conform in all material respects with the requirements form of the Securities Act and it will not contain any untrue statement of a material fact prospectus or omit to state any material fact required to be stated therein or necessary to make the statements thereinsupplement thereto, in light of the circumstances under which they were made), not misleading, ; and (vi) of the Company's reasonable occurrence or existence of any event relating to the Company that the Company believes may be material and that, in the good faith determination that of the Company makes it not in the best interests of the Company to suspend the use of any prospectus included in any Registration (but in no event, without the prior written consent of a post- effective amendment Purchaser, shall the Company disclose to such Registration Statement would be appropriatePurchaser any of the facts or circumstances regarding such event or any other material non-public information relating thereto).
(d) Use every its reasonable effort best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the managing underwriter extent requested by such Person (including those previously furnished or underwritersincorporated by reference) promptly after the filing of such documents with the Commission; provided, if any, or that the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations Company shall have no obligation to provide any document pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as this clause that is available on the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement▇▇▇▇▇ system.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such those jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statements; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it the Company to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statements, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement and under law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior request. In connection therewith, if required by the Company’s transfer agent, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent, which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities in a firm commitment underwritten public offeringunder the Registration Statement.
(jh) Upon Following the occurrence of any event contemplated by Section 4(c)(vSections 3(c)(v) or 4(c)(vi) abovethrough 3(c)(vi), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the affected Registration Statement Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, such no Registration Statement nor any Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading. If the Company notifies the Holders in accordance with Sections 3(c)(ii) through 3(c)(v) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The foregoing sentence shall not be deemed to limit, in any manner, the obligation of the Company to pay the liquidated damages arising under, and in accordance with, Section 2(c).
(ki) Prior As long as any Holder owns Notes, Warrants or Warrant Shares, the Company covenants to use commercially reasonable timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act. As long as any Holder owns Notes, Warrants or Warrant Shares, if the Company is not required to file reports pursuant to Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC Holders and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities make publicly available in accordance with this AgreementRule 144(c) promulgated under the Securities Act annual and quarterly financial statements, together with a discussion and analysis of such financial statements in such connection, (iform and substance substantially similar to those that would otherwise be required to be included in reports required by Section 13(a) make such representations and warranties to the underwriter or underwriters, with respect to the business 15(d) of the Company and the subsidiaries of the CompanyExchange Act, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference thereinas well as any other information required thereby, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and time period that such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 filings would have been required to be, included in have been made under the Registration Statement, addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreementExchange Act. The above shall be done at each closing under Company further covenants that it will take such underwriting agreementfurther action as any Holder may reasonably request, or as and all to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company from time to supply all information in each case reasonably requested by any time to enable such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, sell Notes and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of Warrant Shares without registration under the Securities Act and within the limitation of the exemptions provided by Rule 158 thereunder (or any similar rule 144 promulgated under the Securities Act, including compliance with the provisions of the Purchase Agreement relating to the transfer of the Notes and Warrant Shares.
(j) no later than forty-five Promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (45including each form of prospectus) days after the end of any 12-month period (and each amendment or ninety (90) days after the end of any 12-month period if supplement thereto as such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firPersons may reasonably request.
Appears in 1 contract
Registration Procedures. In connection with the Issuer's Registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 3 and 2.6 4 hereof, the Company shallIssuer will use its reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, except and pursuant thereto the Issuer will as otherwise providedexpeditiously as possible:
(a) Prepare prepare and file with the SEC as soon as practicable each such a Registration Statement (but in any event on or prior Registration Statements relating to the date of filing thereof applicable Demand Registration or Piggyback Registration including all exhibits and financial statements required under this Agreement) by the SEC to be filed therewith, and use its reasonable efforts to cause such Registration Statement to become effective and remain effective as provided hereineffective; provided, howeverPROVIDED, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or the Issuer will furnish copies of any amendments or supplements thereto (only for registrations pursuant in the form filed with respect to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by referenceany Piggyback Registration, including simultaneously with the filing of such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.supplements;
(b) Prepare prepare and file with the SEC such amendments and post- post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for a period of not less than 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement continuously effective have been sold or withdrawn), or, if such Registration Statement relates to an Underwritten Offering, such longer period as in the opinion of counsel for the time periods prescribed herebyunderwriters a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act Act, and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such prospectus as so supplemented.Registration Statement or supplement to the Prospectus;
(c) Notify notify the selling Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly and (but in any event within two (2if requested) Business Days), and confirm such notice advice in writing, as soon as practicable after notice thereof is received by the Issuer (i) when a the Registration Statement or any amendment thereto has been filed or becomes effective, the Prospectus or any prospectus amendment or supplement or post-effective amendment to the Prospectus has been filed, and, to furnish such selling Holders and managing underwriters with respect copies thereof, (ii) of any request by the SEC for amendments or supplements to a the Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement Prospectus or post-effective amendment including financial statements and schedules and exhibits)for additional information, (iiiii) of the issuance by the SEC of any stop order suspending the effectiveness of such the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus Prospectus or Prospectus or the initiation or threatening of any proceedings for that purposesuch purposes, (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) Issuer contemplated by Section 4(lparagraph (m) below, to the knowledge of the Company, below cease to be true and correct in any material respect, and (ivv) of the receipt by the Company Issuer of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer offering or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose;
(d) promptly notify the selling Holders and the managing underwriters, (v) if any, at any time prior to nine months after the time of issue of the Prospectus, when the Issuer becomes aware of the happening of any event, event as a result of which the existence of any condition or information becoming known that requires the making of any changes Prospectus included in such Registration Statement, Prospectus or documents so that, Statement (as then in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain effect) contains any untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, and that (in the case of the Prospectus and any preliminary Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made) when such Prospectus was delivered not misleading or, not misleadingif 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 and, in either case as promptly as practicable thereafter, prepare and file with the SEC, and (vi) of furnish without charge to the Company's reasonable determination that selling Holders and the managing underwriters, if any, a post- effective supplement or amendment to such Registration Statement would be appropriate.Prospectus which will correct such statement or omission or effect such compliance;
(de) Use make every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such stop order as soon as practicable.or other order suspending the use of any preliminary Prospectus or Prospectus or suspending any qualification of the Registrable Securities;
(ef) If if requested by the managing underwriter or underwritersunderwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, if any, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to agree should be included therein relating to comply the plan of distribution with applicable lawrespect 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 (iior best efforts underwritten) Offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification notified of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.;
(fg) Furnish furnish to each selling Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon one executed copy and as many conformed copies as they may reasonably request, one conformed copy of the Registration Statement and each any post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits those incorporated by reference).;
(gh) Deliver deliver to each selling Holder of Registrable Securities, their counsel and each underwriterthe underwriters, if any, without charge, as many copies of each the Prospectus (including each form of prospectuspreliminary Prospectus) and each any amendment or supplement thereto as such Persons may reasonably request; and, subject to request (it being understood that the last paragraph of this Section 4, the Company hereby Issuer consents to the use of such the Prospectus and each or any amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such the Prospectus and or any amendment or supplement thereto.) and such other documents as such selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder;
(hi) Prior on or prior to any offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its reasonable efforts to register or qualify, and cooperate with the Holders of Registrable Securitiesselling Holders, the managing underwriter or underwritersagent, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within each state and other jurisdiction of the United States as the managing any such seller, underwriter or underwriters agent reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the disposition in such jurisdictions continuance of sales and dealings therein for as long as may be necessary to complete the distribution of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, PROVIDED that the Company Issuer will not be required to (A) qualify generally to do business in any jurisdiction where it is in not then so qualified, (B) qualified or to take any action that which would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.;
(ij) Cooperate cooperate with the selling Holders of Registrable Securities and the managing underwriter or underwritersagent, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall sold and not bear bearing any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC")legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders underwriters may reasonably request at least two Business Days business days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.underwriters;
(k) Prior use its reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable Registration, provide a Registration Statement, (i) CUSIP number for all Registrable Securities and provide the registrar applicable trustee or transfer agent with printed certificates for the Registrable Securities with certificates for such securities which are in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.The Depository Trust Company;
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (im) make such representations and warranties to the underwriter or underwriters, with respect to the business Holders of the Company and the subsidiaries of the CompanyRegistrable Securities being registered, and the Registration Statement, Prospectus and documentsunderwriters or agents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers in primary underwritten public offerings;
(n) enter into such customary agreements (including an underwriting agreement) and take all such other actions as the majority of the Holders of any Registrable Securities being sold or the managing underwriter or agent, if any, reasonably request in order to underwriters in underwritten offerings, expedite or facilitate the Registration and confirm the same if and when requested; disposition of such Registrable Securities;
(iio) use reasonable efforts to obtain opinions of counsel for delivery to the Company Holders of Registrable Securities being registered and updates thereof, addressed to the underwriter or agent an opinion or opinions from counsel for the Issuer, upon consummation of the sale of such Registrable Securities to the underwriters covering (the matters customarily covered "Closing Date") in opinions requested customary form and in underwritten offerings form, substance and scope reasonably satisfactory to such other matters as may be reasonably requested by underwriters; Holders, underwriters or agents and their counsel;
(iiip) use reasonable efforts obtain for delivery to obtain "the Issuer and the underwriter or agent, with copies to the Holders, a cold comfort" letters and updates thereof comfort letter from the Issuer's independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of the Registrable Securities covered by such being sold reasonably request, dated the effective date of the Registration Statement and brought down to the managing Closing Date;
(q) cooperate with each seller of Registrable Securities and each underwriter or underwriters or agents) agent participating in the disposition of such Registrable Securities and their respective counsel in connection with respect to all parties any filings required to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to made with the extent required thereunder.NASD;
(mr) Make make available for inspection by a representative of the Holders of a majority of the Registrable Securities being soldSecurities, any underwriter participating in any disposition pursuant to such disposition of Registrable Securities, if anyRegistration, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the CompanyIssuer, and cause the Issuer's officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person representative, underwriter, attorney or accountant in connection with such Registration StatementRegistration; providedPROVIDED that any records, however, information or documents that all material non-public information are designated by the Issuer in writing as confidential shall be kept confidential by such Person, except to the extent that (i) the Persons unless disclosure of such records, information or documents is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information required by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.law;
(ns) Comply use its reasonable efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders holders, as soon as reasonably practicable (but not more than eighteen months) after the effective date of the Registration Statement, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations promulgated thereunder;
(t) as promptly as practicable after filing with the SEC of any document which is incorporated by reference into the Registration Statement or any similar rule promulgated under the Prospectus, provide copies of such document to counsel for the selling Holders and to the managing underwriters, if any;
(u) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities Act) no covered by such Registration Statement from and after a date not later than forty-five the effective date of such Registration Statement; and
(45v) days after the end of any 12-month period use its reasonable efforts to list (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold not already listed) all Registrable Securities covered by such Registration Statement on The New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market. The Issuer may require each Holder of Registrable Securities as to an underwriter which any Registration is being effected to furnish to the Issuer such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Issuer may from time to time reasonably request in writing. Each Holder agrees to furnish such information to the Issuer and to cooperate with the Issuer as necessary to enable the Issuer to comply with the provisions of this Agreement. Each Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Issuer of the happening of any event of the kind described in Section 6(d) hereof, 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 Section 6(d) hereof, or until it is advised in writing by the Issuer 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 Issuer, such Holder will deliver to underwriters in a firm commitment or best efforts underwritten offering and the Issuer (iiat the Issuer's expense) if not sold to an underwriter or to underwriters all copies, other than permanent file copies then in such an offeringHolder's possession, commencing on of the firProspectus covering such Registrable Securities current at the time of receipt of such notice.
Appears in 1 contract
Sources: Registration Rights Agreement (Alliance Imaging Inc /De/)
Registration Procedures. In connection with the obligations of Whenever the Company with respect is required to register any Registration Statement Registrable Securities or facilitate any offering pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Exhibit, the Company shallshall 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, except and pursuant thereto the Company shall as otherwise provided:expeditiously as possible (to the extent applicable to the intended method of disposition):
(a) Prepare prepare and file with the SEC a registration statement, and all amendments and supplements thereto and related prospectuses and prospectus supplements as soon as practicable each may be necessary to comply with applicable securities laws with respect to such Registration Statement (but in any event on or prior Registrable Securities and use its commercially reasonable best efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement registration statement to become effective and remain effective as effective; provided herein; provided, however, that before filing any such Registration Statement a registration statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) prospectus or any amendments or supplements thereto (only for registrations thereto, the Company shall furnish to the counsel selected pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review 7 below copies of all such documents proposed to be filed a reasonable time prior filed, which documents shall be subject to the proposed reasonable review and comment of such counsel, and upon filing thereof. The such documents, the Company shall not file promptly notify in writing such counsel of the receipt by the Company of any Registration Statement written comments by the SEC with respect to such registration statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) prospectus or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation thereto or any written request by the SEC for the amending or supplementing thereof or for additional information with respect thereto;
(i) notify each Eligible Holder holding Registrable Securities of the Securities Act or other applicable law.
(b) Prepare effectiveness of each registration statement filed under this Exhibit and prepare and file with the SEC such amendments and post- post-effective amendments to the Registration Statement as may be necessary to keep such Registration Statement registration statement continuously effective (A) in the case of the Shelf Registration Statement, for the period set forth in Section 2(a) of this Exhibit and (B) in the case of all other registration statements, for a period of not less than 120 days or, if shorter, such time periods prescribed hereby; as all securities in such offering have been disposed of in accordance with the intended method of distribution thereof, (ii) cause the related Prospectus prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions provision then in force) promulgated under the Securities Act; Act and (iii) comply with the provisions of the Securities Act, the Exchange Act Act, and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or registration statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such prospectus as so supplemented.registration statement;
(c) Notify the Holders furnish to each seller of Registrable SecuritiesSecurities such number of copies of such registration statement, their counsel each amendment and supplement thereto, the managing underwriter or underwriters, if any, promptly (but prospectus included in any event within two (2) Business Days), and 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 registration statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of order to facilitate the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales disposition of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated held by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 misleadingseller, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus prospectus and each amendment or supplement thereto by each of the Holders selling holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus prospectus and any amendment or supplement thereto.;
(hd) Prior to any offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, qualify such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions within as determined by the United States as underwriters after consultation with the managing underwriter or underwriters reasonably request in writing, or, Company and the Eligible Holders participating in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period offering and do any and all other acts or and things which may be reasonably necessary or advisable to enable each such seller to consummate the disposition in such jurisdictions of the securities covered thereby; provided, however, Registrable Securities held by such seller (provided that the Company will shall not be required to (Ai) qualify generally to do business in any jurisdiction where it is would not then so qualifiedotherwise be required to qualify but for this subsection, (Bii) take subject itself to taxation in any action that would subject it such jurisdiction, (iii) consent to general service of process in any such jurisdiction where it is not then so subject or (Civ) become subject or take any other actions that would have or be reasonably likely to taxation in any jurisdiction where it is not then so subject.have a material adverse effect on the Company);
(ie) Cooperate with the Holders promptly notify each seller of Registrable Securities and the managing underwriter or underwritersSecurities, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities at any time when a prospectus relating thereto is required to be solddelivered under the Securities Act, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or 4(c)(vi) aboveomits any fact necessary to make the statements therein not misleading, as promptly as practicable and, at the request of any such seller, the Company shall prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities being sold thereunderSecurities, such Prospectus will prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleading.;
(kf) Prior cause all such Registrable Securities to be listed on each national securities exchange (including the New York Stock Exchange or NASDAQ) on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then listed on any national securities exchange, use its commercially reasonable best efforts to cause all such Registrable Securities to be listed on such national securities exchange as the Majority Eligible Holders shall designate;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.registration statement;
(lh) Enter enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition (including by using commercially reasonable best efforts to have officers and senior management of the Company and its subsidiaries participate in “road shows”, including analyst or investor presentations, as part of the selling efforts relating to any underwritten Demand Registration) of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this AgreementSecurities, and in such connection, connection (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Companyits Subsidiaries, and the Registration Statementregistration statement, Prospectus prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; , (ii) use reasonable efforts to obtain 10b-5 statements and opinions of counsel to the Company and updates thereofthereof (which counsel, statements and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters), addressed to the underwriter or underwriters covering the matters customarily covered in 10b-5 statements and opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; , (iii) use reasonable efforts to obtain "“cold comfort" ” letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries of the Company) and, if necessary, any other independent certified public accountants of any subsidiary 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 Statementregistration statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable to the holders of Registrable Securities than those set forth in Section 8 of this Exhibit (or such other provisions and procedures acceptable to Holders holders of a majority of the Registrable Securities covered by such Registration Statement registration statement (or, in the case of an Underwritten Shelf Offering, such offering) and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The Section 8 of this Exhibit, and each of the above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.;
(mi) Make make reasonably available for inspection by a representative of the Holders any seller of Registrable Securities being soldSecurities, any underwriter participating in any disposition pursuant to such disposition of Registrable Securities, if any, registration statement and any attorney attorney, accountant or accountant other agent retained by such representative of the Majority Eligible Holders or such underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and use reasonable best efforts to cause the Company’s officers, directors directors, members, managers, employees and employees of the Company and the subsidiaries of the Company independent accountants to supply all information in each case reasonably requested by any such Person seller, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.registration statement;
(nj) Comply otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC SEC, and make generally available to its security holders holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder;
(k) permit any Eligible Holder of Registrable Securities which Eligible Holder, in its sole and exclusive judgment, might be deemed to be an underwriter or any similar rule promulgated under a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material related to such Eligible Holder, furnished to the Company in writing, which in the reasonable judgment of such Eligible Holder and its counsel should be included;
(l) promptly notify each seller of Registrable Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at of the end issuance by the SEC of any fiscal quarter in which Registrable Securities are sold to an underwriter stop order suspending the effectiveness of a registration statement or to underwriters in a firm commitment of any order preventing or best efforts underwritten offering and suspending the use of any preliminary prospectus, or (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a registration statement or any of the Registrable Securities for offer or sale in any jurisdiction;
(m) 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 Registrable Securities included in such registration statement for sale in any jurisdiction, use its commercially reasonable best efforts promptly to obtain the withdrawal of such order;
(n) use its commercially reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(o) if not sold and to an underwriter or to the extent requested by the managing underwriters in connection with any underwritten Demand Registration, include in such registration securities of the Company in an amount, if any, (not to exceed the amount requested by such underwriters) that the Company’s board of directors deems appropriate in its sole and absolute discretion (it being understood that the Company’s board of directors may choose not to include any securities of the Company in such offering) for the Company in view of the Company’s need for funds and other relevant facts and circumstances at such time, commencing on to be offered in a primary offering of the firCompany’s securities contemporaneously with such offering of Registrable Securities; and
(p) use its commercially reasonable best efforts to take all other steps necessary to effect the registration of Registrable Securities contemplated by this Exhibit.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Gmac LLC)
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 in Section 2 hereof, the Company or MergerCo shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereofi) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders and (ii) cause its officers, directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel, to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company MergerCo shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in good faith, provided that the Company or MergerCo is notified of such objection in writing unless failure to file any no later than three Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement and, and as so supplemented or amended, to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, Securities as promptly (but in any event within two (2) Business Days), as reasonably possible and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed; (B) when the Commission notifies MergerCo whether there will be a "review" of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall cause MergerCo, andupon request, to provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company MergerCo of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and ; (vi) the occurrence or existence of any pending corporate development with respect to MergerCo that the Company or MergerCo believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of MergerCo to such allow continued availability of the Registration Statement would be appropriateor Prospectus; provided that any and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder's agreement to keep such information confidential, the Holders make no acknowledgement that any such information is material, non-public information.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Holder, and all exhibits to the extent requested by such Holder (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Holder may reasonably request; and, subject request in connection their resales. Subject to the last paragraph terms of this Section 4Agreement, the Company and MergerCo hereby consents consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the neither Company will not nor MergerCo shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that qualified if qualification would subject it the Company or MergerCo to general service of process any material tax in any such jurisdiction where it is not then so qualified or subject or (C) become subject it to taxation file a general consent to service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement and applicable law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company or MergerCo notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(c) above to permit suspend the Company use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company shall cause MergerCo to use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company and MergerCo shall be entitled to exercise their right under this Section 3(i) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the end earliest practicable moment.
(l) MergerCo may require each Holder to furnish to MergerCo or the Company a certified statement as to (i) the number of shares of Common Stock beneficially owned by such Holder, (ii) if required by the Commission, the holder thereof or the person that has voting and dispositive control over such shares, (iii) any fiscal quarter in which relationship between such Holder and MergerCo and (iv) such other information regarding such Holder as shall be required by the Commission or the National Association of Securities Dealers. If any such Holder fails to furnish such information within three Trading Days of MergerCo's request, MergerCo or the Company shall furnish written notice of such non-compliance to such Holder, the Placement Agent and the Placement Agent's counsel. If, for a period of two Trading Days after such notice is given, such Holder continues to fail to furnish such information, then (i) MergerCo shall no longer be obligated to include any of such Holder's Registrable Securities are sold as part of the Registration Statement (provided, however, in the event such Holder provides such information to an underwriter or MergerCo prior to underwriters in the time when MergerCo files a firm commitment or best efforts underwritten offering request for acceleration, the Company shall cause MergerCo to register such Holder's Registrable Securities as part of the Registration Statement) and (ii) if not sold the Company shall have no obligation to an underwriter pay any liquidated damages to such Holder with respect to any Event. In the event that (i) the immediately preceding sentence applies, (ii) subsequent to the filing of the above-mentioned request for acceleration such Holder provides such information to MergerCo or the Company and (iii) thereafter the Company causes MergerCo to underwriters file another registration statement in which MergerCo may include such Holder's securities without significant cost to the Company or MergerCo and with the consent of any applicable underwriter, then the Company shall cause MergerCo to use its best efforts to include such Holder's Registrable Securities in such an offeringregistration statement in accordance with customary arrangements applicable to piggyback registration rights.
(m) Notwithstanding anything contained in this Agreement, commencing on the firright of any Holder to request or demand inclusion in any registration hereunder shall terminate if all shares of Registrable Securities held by such Holder maybe immediately sold under Rule 144(k).
Appears in 1 contract
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1under Section 2 hereof, 2.2 and 2.6 hereofduring the Effectiveness Period, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such a Registration Statement (but or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in any event on accordance with the intended method or prior methods of distribution thereof, and use its reasonable efforts to the date of filing thereof required under this Agreement) and cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, provided that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto with the SEC (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents but excluding reports filed with the SEC under the Exchange Act that would be incorporated therein by referenceAct), furnish to and afford the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Initial Purchasers and the managing underwriter or underwriters, if any, an Special Counsel a reasonable opportunity to review copies of all such documents proposed to be filed a reasonable time (in each case, where possible, at least five (5) Business Days prior to the proposed filing thereof. The Company shall not file any of such Registration Statement or amendment thereto or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counselsupplement thereto, or such later date as is reasonable under the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawcircumstances).
(b) Prepare Subject to Section 3(h), prepare and file with the SEC such amendments and post- post-effective amendments to the each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyapplicable period specified in Section 2(a); cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its reasonable efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Holders of Registrable SecuritiesNotice Holders, their counsel the Initial Purchasers and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writingSpecial Counsel, (i) when a Prospectus or any Prospectus, prospectus supplement supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed, filed with the SEC and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness of the Initial Shelf Registration Statement under the Securities Act, without charge, one conformed copy of such by the SEC or any other federal or state governmental authority for amendments or supplements to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information relating to the Shelf Registration Statement, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, (v) of the happening occurrence of, but not the nature of or details concerning, a Material Event and (vi) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable efforts to prevent the issuance of any eventorder suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus and, if any such order is issued, to use its reasonable efforts to obtain the withdrawal of any such order at the earliest possible moment, and provide prompt notice to each Notice Holder and the Initial Purchaser of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Purchaser, upon request and without charge, at least one (1) conformed copy of the Registration Statement and any amendment thereto, including exhibits and if requested, all documents incorporated or deemed to be incorporated therein by reference.
(f) Deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchaser, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable efforts to register or qualify or cooperate with the Notice Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request shall be included in the Notice and Questionnaire or shall otherwise be timely delivered to the Company); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided that the Company will not be required to (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 Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any condition fact (a “Material Event”) as a result of which any Registration Statement shall contain any untrue statement of a material fact or information becoming known that requires omit to state any material fact required to be stated therein or necessary to make the making statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any changes in such Registration Statement, Prospectus or documents so pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement, it will conform in all material respects with Statement or a supplement to the requirements of the Securities Act related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and it will Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement and, in the case of a material fact or omit post-effective amendment to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, subject to the next sentence, use its reasonable efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability of the Shelf Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) provide above, or until it is advised in writing by the registrar for Company that the Registrable Securities with certificates for Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such securities Prospectus. The Company will use its reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in a form eligible for deposit with DTC and the case of clause (iiA) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in formabove, scope and substance as promptly as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connectionpracticable, (iy) make such representations and warranties to in the underwriter or underwriterscase of clause (B) above, with respect to as soon as, in the business of the Company and the subsidiaries sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of the Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay liquidated damages pursuant to Section 2(e) (the “Deferral Period”); provided that the aggregate duration of any Deferral Periods shall not (other than as described in the next sentence) exceed 45 days in any three month period or 120 days in any twelve (12) month period. Notwithstanding the foregoing, in the case of any Material Events relating to any possible acquisitions or financings, recapitalizations, business combinations or other similar material transactions involving the Company, the Company may, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), suspend the availability of the Shelf Registration Statement for up to an aggregate of 180 days in any twelve (12) month period (with no limitation on the aggregate duration of any such Deferral Period in any three-month period).
(i) If reasonably requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be make reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection during normal business hours by a representative of for the Notice Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if anyany broker-dealers, underwriters, attorneys and accountants retained by such Notice Holders, and any attorney attorneys or accountant other agents retained by a broker-dealer or underwriter engaged by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hoursNotice Holders, all relevant financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the appropriate officers, directors and employees of the Company and the its subsidiaries of the Company to supply make reasonably available for inspection during normal business hours on reasonable notice all relevant information in each case reasonably requested by such representative for the Notice Holders, or any such Person broker-dealers, underwriters, attorneys or accountants in connection with such Registration Statementdisposition, in each case as is customary for similar “due diligence” examinations, other than those subject to an attorney-client or other privilege; provided, however, provided that all material non-public such persons shall first agree in writing with the Company that any information that is reasonably designated by the Company as confidential at the time of delivery of such information shall be kept confidential by such Personpersons and shall be used solely for the purposes of exercising rights under this Agreement, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure filing of any information by such Person pursuant Registration Statement or the use of any Prospectus referred to clauses (ii) or in this Agreement), (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or failure to safeguard by any such Person, person or (iv) such information has been made generally becomes available to any such person from a source other than the publicCompany and such source is not bound by a confidentiality agreement, and provided further that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the Special Counsel. Any person legally compelled to disclose any such confidential information made available for inspection shall provide the Company with prompt prior written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall be made available no later than forty-five (45) 45 days after the end of any the 12-month period (or ninety (90) 90 days after if the end of any 12-month period coincides with the fiscal year of the Company. Compliance with all applicable rules and regulations of the SEC satisfies the Company’s obligation to provide such earnings statement if such period the Company is then a fiscal yearreporting company subject to Section 13 or 15(d) of the Exchange Act.
(ik) commencing at Cooperate with each Notice Holder to facilitate the end timely preparation and delivery of any fiscal quarter in which certificates representing Registrable Securities are sold to an underwriter or to underwriters be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be registered in such names as such Notice Holder may request in writing at least two (2) Business Day prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a firm commitment or best efforts form eligible for deposit with The Depository Trust Company.
(m) Cooperate and assist in any necessary filings required to be made with the National Association of Securities Dealers, Inc.
(n) In the case of a Shelf Registration Statement involving an underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCompany shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as Holders of a majority of the Registrable Securities being sold or any managing underwriters shall reasonably request in order to facilitate any disposition of Underlying Common Stock pursuant to such Shelf
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except as otherwise providedhereunder:
(a) Prepare The Company shall prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event Commission on or prior to the date Filing Date, a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration shall be on another appropriate form in accordance with the Securities Act and the rules and regulations promulgated thereunder) covering the resale to the public of filing thereof required under this Agreement) the Registrable Securities, and use its reasonable best efforts to cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare The Company shall prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffective Period and prepare and file with the Commission such additional Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities; (i) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (ii) respond promptly to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iii) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify The Company shall promptly notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly Securities (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every The Company shall use its reasonable effort best efforts to prevent avoid the issuance of of, or, if issued, obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any United States jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Securities, the Company shall (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish The Company shall furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, charge and upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver The Company shall promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, the Company shall use its reasonable best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Effective Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will not shall in no event be required to (Ax) qualify generally to do business in any jurisdiction state where it is not then so qualified, qualified or (By) take any action that would subject it to tax or to the general service of process in any such jurisdiction state where it is not then so subject subject, or (Cz) become subject comply with state securities or “blue sky” laws of any state for which registration by coordination is unavailable to taxation in any jurisdiction where it is not then so subjectthe Company.
(i) Cooperate The Company shall, in the case of an underwritten offering, furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 2, on the date that such shares of Registrable Securities are delivered to the underwriters for sale pursuant to such registration (1) an opinion, dated such date, of the independent counsel representing Company for the purposes of such registration, addressed to the underwriters, in customary form and covering matters of the type customarily covered in such legal opinions; and (2) a comfort letter dated such date, from the independent certified public accountants of Company, addressed to the underwriters, in a customary form and covering matters of the type customarily covered by such comfort letters and as the underwriters shall reasonably request;
(j) The Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities; and
(k) The Company shall cooperate with the 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 soldsold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jl) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as the Company shall promptly as practicable prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(km) Prior The Company shall use its reasonable best efforts to cause all Registrable Securities relating to the effective date Registration Statement to be listed on the National Association of a Securities Dealers Automatic Quotation System or any other securities exchange, quotation system or market, if any, on which similar securities issued by the Company are then listed or traded as and when required pursuant to the Investment Agreement.
(n) The Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within fifteen (15) days after receiving such request.
(o) Each Holder covenants and agrees that (i) provide the registrar for the it will not sell any Registrable Securities with certificates for under the Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated in Section 3(g) and notice from the Company that such securities in a form eligible for deposit with DTC Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) provide a CUSIP number for such securitiesit and its officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to the Registration Statement.
(lp) Enter into an underwriting agreement Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in formSection 3(c)(ii), scope and substance as is customary in underwritten offerings and take all 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(o), such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or Holder will forthwith discontinue disposition of such Registrable Securities in any underwritten offering to be made under the Registration Statement until such Holder’s receipt of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing by the Company and that the subsidiaries use of the Companyapplicable Prospectus may be resumed, and the Registration Statementand, Prospectus and documentsin either case, if any, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter such Prospectus or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(mq) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all If (i) there is material non-public information shall regarding the Company which the Board reasonably and in good faith determines not to be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement Company’s best interest to disclose and which the Company is not otherwise required to disclose, or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) there is a significant business opportunity (including, but not limited to, the release acquisition or disposition of such information is ordered pursuant to a subpoena assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other order from a court of competent jurisdiction, (iiisimilar transaction) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable available to the Company of which the potential disclosure of any information by such Person pursuant Board reasonably determines not to clauses (ii) or (iii) of this sentence be in the Company’s best interest to permit disclose, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or exceed ninety (90) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(o) for more than one hundred and twenty (120) days after in the end of aggregate during any 12-12 month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firperiod.
Appears in 1 contract
Sources: Registration Rights Agreement (Viisage Technology Inc)
Registration Procedures. In connection with the obligations registration of the Company with respect to any Registration Statement Registrable Securities pursuant to Sections 2.1, 2.2 and 2.6 Section 2 hereof, the Company Registrants shall effect 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 Registrants shall, except as otherwise provided:
(a) Prepare Use their reasonable best efforts to prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) Filing Date, a Registration Statement as prescribed by Section 2, and to use their reasonable best efforts to cause such Registration Statement to become effective and remain effective as provided herein; provided, howeverprovided that, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)thereto, the Company shall, Registrants shall upon request, written request furnish to and afford promptly to the Holders of the Registrable Securities (which in the case of Registrable Securities in the form of global certificates shall be The Depository Trust Company ("DTC")) to be covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawfiled.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to each Shelf Registration Statement, as the Registration Statement case may be, as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyEffectiveness Period; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the selling Holders of Registrable Securities, their counsel and Securities named in the managing underwriter or underwriters, if any, Shelf Registration Statement promptly (but in any event within two (2) Business Daysfive business days), and confirm such notice in writing, (i) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibitsamendment), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company Registrants of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the a Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding for such purpose, (viv) of the happening of any event, the existence of event or any condition or information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viv) of the Company's Registrants' reasonable determination that a post- post-effective amendment to such a Registration Statement would be appropriate.
(d) Use every their reasonable effort best efforts to prevent the issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to use their reasonable best efforts to obtain the withdrawal of any such order as soon as practicableat the earliest possible moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the shares of Common Stock constituting, or issuable upon conversion of, the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable lawtherein, or (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has Registrants have received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each selling Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each the Prospectus or Prospectuses (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company Registrants hereby consents consent to the use of such Prospectus and each amendment or supplement thereto by each of the Holders selling holders of Registrable Securities and the underwriter or underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, to use their reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel Securities in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any selling Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, provided that where Registrable Securities are offered other than through an underwritten offering, the Company agrees Registrants agree to cause its their counsel to perform blue sky Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period such Registration Statement is required to be kept effective and do any and all other reasonable acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered thereby; providedby the applicable Registration Statement, however, provided that neither the Company will not nor the Trust shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject itself to taxation in excess of a nominal dollar amount in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate Reasonably 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior request.
(i) Use their reasonable best efforts to any sale of cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other United States governmental agencies or authorities of the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities, except as may be required solely as a consequence of the nature of such selling Holder's business, in a firm commitment underwritten public offeringwhich case the Registrants will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals.
(j) Upon the occurrence of any event contemplated by Section 4(c)(vparagraph 4(c)(iv) or 4(c)(vi4(c)(v) above, as promptly as practicable prepare and (subject to Section 4(a) above) file with the SEC, solely at the expense of the Registrants, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, or file such with the SEC any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a the first Registration StatementStatement relating to the Registrable Securities, (i) provide the registrar Trustees with printed certificates for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesthe Registrable Securities.
(l) Enter into Provide an underwriting agreement in form, scope indenture trustee for the Junior Subordinated Debentures and substance as is customary in underwritten offerings cause the Indenture and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering Guarantee Agreement to be made qualified under the TIA not later than the effective date of the first Registration Statement relating to the Registrable Securities; and in connection therewith, cooperate with the trustee under the Indenture and the holders of the Registrable Securities Securities, to effect such changes to the Indenture and the Guarantee Agreement as may be required for the Indenture and the Guarantee Agreement to be so qualified in accordance with this Agreementthe terms of the TIA; and execute, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use their reasonable best efforts to obtain opinions of counsel cause such trustee to the Company and updates thereofexecute, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters all documents as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 beeffect such changes, included in the Registration Statement, addressed to each of the underwriters, such letters and all other forms and documents required to be in customary form and covering matters of filed with the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by SEC to enable the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement Indenture and the managing underwriter or underwriters or agents) with respect to all parties Guarantee Agreement to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderso qualified in a timely manner.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating Comply in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply respects with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) 90 days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firfirst day of the first fiscal quarter of the Company after the effective date of a Shelf Registration Statement.
(n) Reasonably cooperate with each seller of Registrable Securities covered by any Registration Statement participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD").
(o) Use their reasonable best efforts to take all other steps necessary to effect the registration of the Registrable Securities covered by a Registration Statement contemplated hereby. The Registrants may require each seller of Registrable Securities to furnish to the Registrants such information regarding such seller and the distribution of such Registrable Securities as the Registrants may, from time to time, reasonably request. The Registrants may exclude from such registration the Registrable Securities of any seller who fails to furnish such information within a reasonable time after receiving such request. Each seller as to which any Shelf Registration is being effected is deemed to agree to furnish promptly to the Registrants all information required to be disclosed in order to make the information previously furnished to the Registrants by such seller not materially misleading. Each Holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Registrants of the happening of any event of the kind described in Section 4(c)(ii), 4(c)(iii), 4(c)(iv), or 4(c)(v), such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(k), or until it is advised in writing (the "Advice") by the Registrants that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the event the Registrants shall give any such notice, the Effectiveness Period shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement shall be given (x) the copies of the supplemented or amended Prospectus contemplated by Section 4(k) or (y) the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Owens & Minor Trust I)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or 6.2.1 Not less than three Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shallshall (i) furnish to each Purchaser and any counsel designated by any Purchaser (each, upon requesta "PURCHASER COUNSEL"), afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Purchaser and each Purchaser Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of each Purchaser Counsel, to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActPurchaser true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchaser thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) 6.2.3 Notify the Holders Purchaser of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, each Purchaser Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or "review" of any prospectus supplement or post-effective amendment has been filed, and, with respect Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such comments and of all written responses thereto); (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) 6.2.4 Use every its commercially reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) 6.2.5 Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities Purchaser and each managing underwriter, if anyPurchaser Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(g) Deliver 6.2.6 Promptly deliver to each Holder of Registrable Securities, their counsel Purchaser and each underwriter, if anyPurchaser Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchaser in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Registration Procedures. In connection with the obligations of the Company with respect to Whenever any Registration Statement holder has requested that any Registrable Securities be registered pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Schedule III, the Company shall use its reasonable best efforts to effect the registration of such Registrable Securities and in furtherance thereof the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare prepare and file with the SEC such amendments, including post-effective amendments and post- effective amendments supplements to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective for as to the time periods prescribed herebyapplicable Registrable Securities until the holder or holders have completed the distribution described in such Registration Statement; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (including, among other things, as a result of any change or changes after the effective date of the Registration Statement in the plan of distribution contemplated by the holders), and as so supplemented or amended to be filed pursuant to Rule 424 promulgated under the Securities Act (or any similar provisions then in force); (iii) promulgated under respond as promptly as possible to any comments received from the Securities ActSEC with respect to each Registration Statement or any amendment thereto and as promptly as possible provide the holders true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; provided, however, that any information for which the Company requests confidential treatment from the SEC shall be kept confidential by the holders, unless (A) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (B) disclosure of such information, in the opinion of counsel to such holders, is required by law; (C) such information becomes generally available to the public other than as a result of a disclosure or negligent failure to safeguard by such holders; or (D) such information becomes available to such holders from a source other than the Company and such source is not known by such holders to be bound by a confidentiality agreement with the Company; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such each Registration Statement in accordance with the intended methods of disposition by the holders as set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.;
(c) Notify B. furnish to the Holders holders of Registrable SecuritiesSecurities to be sold, their counsel and the any managing underwriter or underwriters, if anycopies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such holders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such holders and such underwriters, to conduct a reasonable due diligence investigation within the meaning of the Securities Act;
C. notify the holders of Registrable Securities to be sold, and any managing underwriters as promptly as possible (but and in any event within two the case of (2i), below, not less than five (5) Business Days), Days prior to such filing) and confirm such notice in writing, writing no later than one (1) Business Day following the day:
(i) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ;
(ii) when the SEC notifies the Company whether there will be a "review" of a Registration Statement and whenever the SEC comments in writing on such Registration Statement;
(iii) with respect to a each Registration Statement or any post-effective amendment, when the same has become effective effective;
(including in such notice a written statement that iv) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the SEC or any other Federal or state governmental authority for amendments or supplements to each Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information;
(iiv) of the issuance by the SEC of any stop order suspending the effectiveness of such each Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings for that purpose, ;
(iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to hereby in connection with the knowledge registration of the Company, cease Registrable Securities ceases to be true and correct in any all material respect, respects;
(ivvii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding for such purpose, ; and
(vviii) of the happening occurrence of any event, the existence of event that makes any condition statement made in any Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in revisions to such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's ;
D. use its reasonable determination that a post- effective amendment best efforts to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, at the earliest practicable moment;
E. if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the any managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being to be sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Underwritten Offering, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment; provided, and however, that the Company shall not be required to take any action pursuant to this Section 4E that would (iiix) supplement in the opinion of counsel for the Company, violate applicable law or make amendments not be required to such Registration Statement.be taken by applicable securities laws or (y) be detrimental to the business prospects of the Company;
(f) Furnish F. furnish to each Holder holder of Registrable Securities who so requests to be sold, and to counsel for the Holders of Registrable Securities and each any managing underwriter, if anyunderwriters, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference).) promptly after the filing of such documents with the SEC;
(g) Deliver G. promptly deliver to each Holder holder of Registrable SecuritiesSecurities to be sold, their counsel and each underwriter, if anyany underwriters, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectusProspectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the ;
H. use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, its reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securitiesselling holders, the underwriter or underwriters, if any, any underwriters and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing any selling holder or underwriter or underwriters reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during until the Effectiveness Period holder or holders have completed the distribution of such Registrable Securities and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.;
(i) Cooperate I. cooperate with the Holders of Registrable Securities selling holders and the any managing underwriter or underwriters, if any, underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be soldsold pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by applicable law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the any such managing underwriter underwriters or underwriters, if any, or Holders selling holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon pursuant to such Registration Statement; J. upon the occurrence of any event contemplated by Section 4(c)(v4C(viii) or 4(c)(vi) aboveof this Schedule III, as promptly as practicable reasonably practicable, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject and file any other document required to Section 4(a) hereof, file such with the SEC be filed in connection therewith so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir;
Appears in 1 contract
Sources: Securityholders Agreement (Accent Optical Technologies Inc)
Registration Procedures. In connection with the obligations of the Company with respect to Whenever any Registration Statement Holder has requested that any Registrable Securities be registered pursuant to Sections 2.1, 2.2 and 2.6 hereofthis Annex A, the Company will use its reasonable best efforts to effect the registration of such Registrable Securities and in furtherance thereof the Company shall, except as otherwise provided:
(a) Prepare prepare and file with the SEC as soon as practicable each Commission on any appropriate form under the Securities Act with respect to such Registration Statement (but in any event on or prior Registrable Securities and use its commercially reasonable efforts to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.effective;
(b) Prepare prepare and file with the SEC Commission such amendments, including post-effective amendments and post- effective amendments supplements to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or such lesser period as is necessary for the time periods prescribed herebyunderwriters in an underwritten offering to sell unsold allotments) and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible to any comments received from the Commission with respect to the Registration Statements or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statements; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement Statements during the applicable period in accordance with the intended methods of disposition by the Stockholders thereof set forth in the Registration Statements as so amended or in such prospectus Prospectus as so supplemented.;
(ci) Notify furnish to the Holders of Registrable SecuritiesSecurities to be sold, their counsel and the any managing underwriter or underwriters, if anycopies of all such documents proposed to be filed, promptly which documents (but other than those incorporated by reference) will be subject to the review of such Stockholders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement to which the holder of a majority of the Registrable Securities or its counsel or any event managing underwriters shall reasonably object in writing within two three (23) Business DaysDays of their receipt thereof;
(d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible (and in the case of (i), below, not less than five (5) days prior to such filing) and confirm such notice in writing, writing no later than one (1) Business Day following the day:
(i) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statements is proposed to be filed, and, ;
(ii) when the Commission notifies the Company whether there will be a "review" of such Registration Statements and whenever the Commission comments in writing on such Registration Statements;
(iii) with respect to a the Registration Statement Statements or any post-effective amendment, when the same has become effective effective;
(including in such notice a written statement that iv) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement Statements or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information;
(iiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement Statements covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ;
(iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects;
(ivvii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and
(vviii) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statements or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration StatementStatements, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statements 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.;
(de) Use every reasonable effort use its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statements or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.earliest practicable moment;
(ef) If if requested by the any managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being to be sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)Underwritten Offering, (i) promptly incorporate in a prospectus Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriter or underwriters, if any, or such Holders Company reasonably request to agrees should be included therein to comply with applicable law, and (ii) make all required filings of such prospectus Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus Prospectus supplement or post-effective amendment; provided, and (iii) supplement or make amendments however, that the Company shall not be required to such Registration Statement.
take any action pursuant to this clause (f) Furnish that would, in the opinion of counsel for the Company, violate applicable law or be materially detrimental to the business prospects of the Company;
(g) furnish to each Holder of Registrable Securities who so requests to be sold, their counsel and to counsel for the Holders of Registrable Securities and each any managing underwriter, if anyunderwriters, without charge, upon request, at least one conformed copy of the each Registration Statement Statements and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference).) promptly after the filing of such documents with the Commission;
(gh) Deliver promptly deliver to each Holder of Registrable SecuritiesSecurities to be sold, their counsel counsel, and each underwriter, if anyany underwriters, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities selling Stockholders and the underwriter or any underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(hi) Prior prior to any public offering of Registrable Securities, use its best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securitiesselling Holders, the underwriter or underwriters, if any, any underwriters and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing any selling Holder or underwriter or underwriters reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period for at least 180 days and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.;
(ij) Cooperate cooperate with the selling Holders of Registrable Securities and the any managing underwriter or underwriters, if any, underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be soldsold pursuant to a Registration Statements, which certificates shall not bear any be free, to the extent permitted by applicable law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the any such managing underwriter underwriters or underwriters, if any, or Holders Stockholders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.Securities;
(jk) Upon upon the occurrence of any event contemplated by Section 4(c)(v4(d)(viii) or 4(c)(vi) aboveof this Annex A, as promptly as practicable possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statements nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.;
(l) Enter use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the securities exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings Underwritten Offerings) and take all such other actions as are in connection therewith (including those reasonably requested by the any managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this AgreementSecurities, and in such connection, whether or not an underwriting agreement is entered into):
(i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company such selling Holders and the subsidiaries of the Company, 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 such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested; ;
(ii) use reasonable efforts in the case of an Underwritten Offering, obtain and deliver copies thereof to obtain the managing underwriters, if any, of opinions of counsel to the Company and updates thereof, thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the underwriter or underwriters selling Stockholders covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters; ;
(iii) use reasonable efforts immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 areis, or are is required to be, included in the Registration StatementStatements), addressed to each selling Holder and each of the underwriters, such letters to be if any, in customary form and covering matters of the type customarily covered in "cold comfort" letters substance as are customary in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and Underwritten Offerings;
(iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, other than those set forth in Section 8 of this Annex A (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters, if any; and
(v) deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters or agents) with respect to all parties to be indemnified evidence the continued validity of the representations and warranties made pursuant to such agreement. The clause (i) above shall be done at each closing under such underwriting agreement, or as and to evidence compliance with any customary conditions contained in the extent required thereunder.underwriting agreement or other agreement entered into by the Company;
(mn) Make make available for inspection by a the selling Holders, any representative of the Holders of Registrable Securities being soldsuch Holders, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders selling Holder or underwriterunderwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the officers, directors directors, agents and employees of the Company and the its subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Holder, representative, underwriter, attorney or accountant in connection with such the Registration StatementStatements; provided, however, that all material non-public any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such PersonPersons, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any respond to inquiries of the transactions contemplated hereby or arising hereunderregulatory authorities; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or any failure to safeguard by such Person, ; or (iv) such information has been made generally becomes available to such Person from a source other than the public.Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company;
(no) Comply comply in all material respects with all applicable rules and regulations of the SEC Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no not later than forty-five (45) 45 days after the end of any 12-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering Underwritten Offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firfirst day of the first fiscal quarter of the Company after the effective date of the Registration Statements, which statement shall conform to the requirements of Rule 158;
(p) the Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statements, and the Company may exclude from such registration the Registrable Securities of any such Stockholder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statements refers to any Stockholder by name or otherwise as the holder of any securities of the Company, then such Stockholder shall have the right to require (if such reference to such Stockholder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force) the deletion of the reference to such Stockholder in any amendment or supplement to the Registration Statements filed or prepared subsequent to the time that such reference ceases to be required.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than two Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such the Registration Statement or any related Prospectus (for registrations pursuant and as early as practicable prior to Sections 2.1 and 2.2 hereof) the filing of any amendment or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)supplement thereto, the Company shall, upon request, afford promptly shall furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Lead Purchasers and the managing underwriter or underwriters, if any, an opportunity to review Lead Purchaser Counsel copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereofreview of such Lead Purchasers and Lead Purchaser Counsel. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant containing information regarding the plan of distribution and the selling securityholders to Section 2.1 hereof) if which the Holders of Lead Purchasers holding a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure prior to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawfiling.
(bi) Prepare Subject to SECTION 6.1(e) prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and comply with (iii) respond as promptly as reasonably possible to any comments received from the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it Commission with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplementedany amendment thereto.
(c) Notify the Holders Purchasers of Registrable Securities, their counsel Securities to be sold and the managing underwriter or underwriters, if any, Lead Purchaser Counsel as promptly (but in any event within two (2) Business Days)as reasonably possible, and (if requested by any such Person) confirm such notice in writingwriting no later than one Trading Day thereafter, of any of the following events: (i) when the Commission notifies the Company whether there will be a Prospectus or "review" of any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement; (ii) the Commission comments in writing on any Registration Statement; (iii) any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (including in such notice a written statement that Commission or any Holder may, upon request, obtain, without charge, one conformed copy of such other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or requests additional information related thereto; (iiv) of the issuance by the SEC of Commission issues any stop order suspending the effectiveness of such any Registration Statement or of initiates any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiivi) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company receives notice of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threat of any proceeding Proceeding for such purpose, ; or (vvii) of the happening of financial statements included in any event, the existence of Registration Statement become ineligible for inclusion therein or any condition statement made in any Registration Statement or information becoming known that requires the making of Prospectus or any changes document incorporated or deemed to be incorporated therein by reference is untrue in such any material respect or any revision to a Registration Statement, Prospectus or documents other document is required so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, . The Company shall furnish Lead Purchaser Counsel with copies of all comment letters on the Registration Statement from the Commission (and (vi) shall furnish the Purchasers with all portions of such comment letters related to the "Plan of Distribution" or "Selling Shareholders" section of such Registration Statement); shall keep Lead Purchaser Counsel fully apprised of the Company's reasonable determination that a post- effective amendment scope and status of any responses to such the Commission and shall otherwise cooperate with Lead Purchaser Counsel in keeping Lead Purchasers appraised of the status of the Registration Statement. The Company shall not make any amendments to the Registration Statement would be appropriateor make any response to any comment letter relating to the "Plan of Distribution" or the "Selling Shareholders" sections without the prior approval of the Lead Purchasers.
(d) Use every its reasonable effort best efforts to prevent avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicablepossible.
(e) If requested by the managing underwriter or underwritersLead Purchasers, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish furnish to each Holder of Registrable Securities who so requests Lead Purchaser and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyLead Purchaser Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel Purchaser and each underwriter, if anythe Lead Purchaser Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the . The Company hereby consents to the use of such Prospectus and each amendment as amended or supplement thereto supplemented by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Purchasers in connection with the offering and sale resale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all reasonable steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable SecuritiesSecurities by the Purchasers, use its reasonable best efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, selling Purchasers and the underwriter or underwriters, if any, and their respective counsel Lead Purchaser Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request any Purchaser requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company will shall not be required obligated to (A) file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by this Agreement and under law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Purchasers may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) abovedescribed in SECTION 6.2(c)(vii), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Prior Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities, including, without limitation, subject to appropriate confidentiality agreements, by making available any documents and information; provided that the effective date of a Registration StatementCompany will not deliver or make available to any Purchaser material, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC nonpublic information and (ii) provide a CUSIP number for causing its officers and directors, counsel and independent certified public accountants to respond to such securitiesinquiries, , unless such Purchaser specifically requests in advance to receive material, nonpublic information in writing and executes an appropriate form of confidentiality agreement.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firCommission.
Appears in 1 contract
Registration Procedures. In connection with The procedures to be followed by the Company and each selling Holder, and the respective rights and obligations of the Company and such Holders, with respect to any the preparation, filing and effectiveness of a Registration Statement Statement, and the distribution of Registrable Securities pursuant to Sections 2.1thereto, 2.2 and 2.6 hereof, the Company shall, except are as otherwise providedfollows:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement The Company will, at least five (but in any event on or 5) Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated other than any amendment or deemed to be incorporated therein supplement made through the incorporation by reference, including such documents filed under the reference of ordinary course Exchange Act that would be incorporated therein by referencefilings), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior filed, which documents will be subject to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus reasonable review of such Holders and (for registrations pursuant ii) use its commercially reasonable efforts to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if address in each such document when so filed with the Commission such comments as the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, reasonably shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawpropose.
(b) Prepare The Company will use commercially reasonable efforts to (i) prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and post- effective amendments supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it law with respect to the disposition of all securities Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as selling securityholders but not any comments that would result in such prospectus as so supplementedthe disclosure to the Holders of material and non-public information concerning the Company.
(c) Notify The Company will comply in all material respects with the Holders provisions of Registrable Securities, their counsel the Securities Act and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment has been filed, and, Exchange Act with respect to a the Registration Statement or any post-effective amendment, when Statements and the same has become effective disposition of all Registrable Securities covered by each Registration Statement.
(including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), d) The Company will notify the Holders as promptly as reasonably possible (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations initiation of any Proceedings for that purpose; and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (ivii) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(de) Use every The Company will use commercially reasonable effort efforts to prevent obtain the issuance withdrawal of any order suspending the effectiveness of a Registration Statement, at the Registration Statement earliest practicable moment, or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order or suspension is issuedmade effective during any Black-Out Period, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable moment after the Company has received notification of the matters to be incorporated in such prospectus supplement or postBlack-effective amendment, and (iii) supplement or make amendments to such Registration StatementOut Period is over.
(f) Furnish During the Effectiveness Period, the Company will furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference thereto and all exhibits to the extent requested by such Person (including exhibits those incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the E▇▇▇▇ system.
(g) Deliver The Company will promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each other than any amendment or supplement thereto made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request; and, subject to request during the last paragraph of this Section 4, the Effectiveness Period. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto in accordance with this Agreement.
(h) Prior The Company will, prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the applicable state securities or blue sky laws of such those jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees writing to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and use its commercially reasonable efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statements; provided, however, that the Company will not be required to (Ai) qualify generally to do business or as a dealer in securities in any jurisdiction where it is not then so qualified, qualified or (Bii) take any action that which would subject it the Company to general service of process or any material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate The Company will cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statements, which certificates shall not bear any be free of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwritersany such Holders may request in writing. In connection therewith, if anyrequired by the Company’s transfer agent, or Holders may reasonably request at least two Business Days prior the Company will promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to its transfer agent when and as required by such transfer agent from time to time, 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 legend upon sale by the holder of such shares of Registrable Securities in a firm commitment underwritten public offeringunder the Registration Statement.
(j) Upon The Company will use commercially reasonable efforts to prepare such supplements or amendments, including a post-effective amendment, if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the occurrence Effectiveness Period; provided, that no such supplement, amendment or filing will be required during a Black-Out Period. No later than 8:00 p.m. (New York time) on any Trading Day on which the Company receives a written notice (a “Use Notice”) prior to 2:00 p.m. (New York time) on such Trading Day (or if such request is received after 2:00 p.m. (New York time), no later than 8:00 p.m. (New York time) on the following Trading Day) from a Holder that such Holder intends to use the Registration Statement to resell Registrable Securities, the Company will (A) provide written confirmation to such Holder that the applicable Registration Statement is Available or (B) provide written notice (a “Suspension Notice”) that the use of such Registration Statement is suspended due to a Black-Out Period. No Suspension Notice will contain the reason for the Black-Out Period. The Company will promptly provide the Holders written notice when the Black-Out Period. If a Black-Out Period commences during any event contemplated by Section 4(c)(v) or 4(c)(vi30 Trading Day period following delivery of a Use Notice and a notice from the Company under clause (A) above, the Company will provide as promptly as practicable prepare a supplement or post-effective amendment to the Holders with written notice thereof and that the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingis no longer Available.
(k) Prior Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the Holder furnishes to the effective date Company a completed questionnaire substantially in the form of a Exhibit A (the “Questionnaire”) for use in connection with the Registration Statement at least ten (10) Trading Days prior to the filing of the Registration Statement; provided, (i) provide however, an Investor shall not be required to furnish a Questionnaire in connection with the registrar for initial Registration Statement if such Investor owns Common Stock initially purchased by such Investor at the Closing as of the initial Filing Date. Each Holder who intends to include any of its Registrable Securities with certificates for in the Registration Statement shall promptly furnish the Company in writing such securities other information as the Company may reasonably request in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitieswriting.
(l) Enter into The Holders may distribute the Registrable Securities by means of up to two underwritten offerings; provided that (a) the Electing Holders provide written notice to the Company of their intention to distribute Registrable Securities by means of an underwritten offering, (b) the managing underwriter or underwriters thereof shall be designated by the Electing Holders; provided, however, that such designated managing underwriter or underwriters shall be reasonably acceptable to the Company, (c) each Holder participating in such underwritten offering agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting agreement arrangements approved by the persons entitled selecting the managing underwriter or underwriters hereunder and (d) each Holder participating in formsuch underwritten offering completes and executes all questionnaires, scope powers of attorney, indemnities, underwriting agreements and substance as is other documents reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary in legal opinions and auditor “comfort” letters.
(m) In the event the Holders seek to complete an underwritten offerings offering pursuant to Section 3(l), for a reasonable period prior to the filing of any Registration Statement, and take all throughout the Effectiveness Period, the Company will make available upon reasonable notice at the Company’s principal place of business or such other actions as are reasonably requested reasonable place for inspection by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities selected in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwritersSection 3(l), such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents information and properties of the Company books and the subsidiaries records of the Company, and cause the officers, directors employees, counsel and employees of the Company and the subsidiaries independent certified public accountants of the Company to supply all information respond to such inquiries, as shall be reasonably necessary (and in each the case reasonably requested by any of counsel, not violate an attorney-client privilege in such Person in connection with such Registration Statementcounsel’s reasonable belief), to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that all material non-public the foregoing inspection and information gathering on behalf of the Holders (and any managing underwriter or underwriters) shall be kept confidential conducted by such Person, except legal counsel to the extent Holders (and legal counsel to such managing underwriter or underwriters); provided further, that each such party shall be required to maintain in confidence and not to disclose to any other Person any information or records reasonably designated by the Company as being confidential, until such time as (iA) the disclosure of such information is necessary or advisable to avoid or correct becomes a misstatement or omission matter of public record (whether by virtue of its inclusion in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) other manner other than through the release of such information is ordered by any Person afforded access to such information pursuant hereto), or (B) such Person shall be required so to disclose such information pursuant to a subpoena or order of any court or other order from a court of competent jurisdiction, governmental agency or body having jurisdiction over the matter (iii) disclosure subject to the requirements of such information is necessary in connection with any actionorder, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that only after such Person shall take all actions as are reasonably necessary to protect have given the confidentiality Company prompt prior written notice of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicrequirement).
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Sources: Registration Rights Agreement (Cellular Biomedicine Group, Inc.)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents excluding any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith object.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale of by the Holders of not less than 150% of the number of such Registrable Securities or such other lesser amount as shall be required in order to comply with the requirements of Rule 415(a)(2).
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (v) hereof, shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) .. Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ih) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v3(d)(ii) or 4(c)(vi) abovethrough (v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to misleading and that the effective date event that resulted in the suspension of a Registration Statement, (i) provide such Prospectus is otherwise cured. If the registrar for Company notifies the Registrable Securities Holders in accordance with certificates for such securities in a form eligible for deposit with DTC and clauses (ii) provide a CUSIP number for through (v) of Section 3(d) above to suspend the use of the use of any Prospectus until the requisite changes to such securities.
(l) Enter into an underwriting agreement in formProspectus have been made, scope and substance then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is customary in underwritten offerings practicable. The Company agrees and take all such other actions as are reasonably requested by acknowledges that any periods during which the managing underwriter or underwriters in order Holder is required to expedite or facilitate discontinue the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties hereunder shall be subject to the underwriter or underwriters, with respect to the business provisions of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderSection 2(b).
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(nj) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(k) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(l) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within five Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled as to such Holder until such information is delivered to the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 under Section 2 hereof, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such a Registration Statement (but or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in any event on accordance with the intended method or prior methods of distribution thereof, and use its best efforts to the date of filing thereof required under this Agreement) and cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, provided that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under with the Exchange Act that would be incorporated therein by reference)SEC, the Company shall, upon request, afford promptly shall furnish to the Purchasers and counsel for the Holders of and for the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwritersPurchasers (or, if anyapplicable, an opportunity to review separate counsel for the Holders) copies of all such documents proposed to be filed a reasonable time prior and use its best efforts to reflect in each such document when so filed with the SEC such comments as such counsel reasonably shall propose within three (3) Business Days of the delivery of such copies to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 Purchasers and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the each Registration Statement as may be necessary to keep such Registration Statement continuously effective for until the time periods prescribed herebyexpiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required prospectus Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and use its best efforts to comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it them with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Notice Holders, the Purchasers and counsel for the Holders of Registrable Securities, their counsel and for the managing underwriter or underwritersPurchasers (or, if anyapplicable, promptly (but in any event within two (2separate counsel for the Holders) Business Days), and confirm such notice in writing, (i) when a any Prospectus, Prospectus or any prospectus supplement supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed, filed with the SEC and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (including in such notice a written statement that ii) of any Holder may, upon request, obtainfollowing the effectiveness of the Initial Shelf Registration Statement under the Securities Act, without charge, one conformed copy of such by the SEC or any other federal or state governmental authority for amendments or supplements to any Registration Statement or post-effective amendment including financial statements and schedules and exhibits)related Prospectus or for additional information, (iiiii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of such any Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, jurisdiction or (B) the initiation or threatening of any proceeding for such purpose, purpose and (v) of the happening determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its best efforts to prevent the issuance of, and, if issued, to obtain the withdrawal of any eventorder suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case as promptly as practicable, and provide prompt notice to each Notice Holder and the Purchasers of the withdrawal of any such order.
(e) If reasonably requested by the Purchasers or any Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the Purchasers, such Notice Holder or counsel for the Holders and for the Purchasers (or, if applicable, separate counsel for the Holders) shall, on the basis of a written opinion of nationally-recognized counsel experienced in such matters, determine to be required to be included therein by applicable law and make any required filings of such Prospectus supplement or such post-effective amendment provided that the Company shall not be required to take any actions under this Section 3(e) that, in the written opinion of counsel for the Company, are not in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder, counsel for the Holders and for the Purchasers (or, if applicable, separate counsel for the Holders) and the Purchasers, without charge, at least one (1) conformed copy of the Registration Statement and any 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 to the Company by such Notice Holder, such counsel or the Purchasers).
(g) During the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders and for the Purchasers (or, if applicable, separate counsel for the Holders) and the Purchasers, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its best efforts to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder's offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where they would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where they are not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any condition fact as a result of which any Registration Statement shall contain any untrue statement of a material fact required to be stated therein or information becoming known that requires omit to state any material fact required to be stated therein or necessary in order to make the making statements therein not misleading, or any Prospectus shall 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, or (C) the occurrence or existence of any changes in such Registration Statement, Prospectus or documents so pending corporate development (a "Material Event") that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file a post-effective amendment to such Registration StatementStatement or a supplement to the related Prospectus or any document incorporated therein by reference, it will conform if applicable or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or necessary in all material respects with order to make the requirements of the Securities Act statements therein not misleading, and it will such Prospectus does 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 (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use its best efforts to cause it to be declared effective as promptly as is practicable, and (ii) give notice to the Notice Holders and counsel for the Holders and for the Purchasers (or, if applicable, separate counsel for the Holders) that the availability of the Shelf Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, the Registration Statement does not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading and that in the case of the Prospectus, it will conform in all material respects with the requirements of the Securities Act and it will Prospectus does not contain any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (viz) in the case of clause (C) above, as soon as, in the reasonable discretion of the Company's reasonable determination that a post- effective amendment to , such Registration Statement would be suspension is no longer appropriate.
(d) Use every reasonable effort to prevent . The period during which the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy availability of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits any Prospectus is suspended (including exhibits incorporated by reference).
(gthe "Deferral Period") Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents incurring any obligation to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pay liquidated damages pursuant to this Section 4(h2(e); keep each such registration or qualification , shall not exceed thirty (or exemption therefrom30) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business days in any jurisdiction where it is not then so qualified, ninety- (B90-) take any action that would subject it to general service of process day period and ninety (90) days in any such jurisdiction where it is not then so subject or twelve- (C12-) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringmonth period.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection during normal business hours by a representative of for the Notice Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant broker-dealers, attorneys and accountants retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hoursNotice Holders, all reasonably requested financial and other records, records and pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the appropriate executive officers, directors and employees of the Company and the its subsidiaries of the Company to supply make available for inspection during normal business hours all relevant information in each case reasonably requested by such representative for the Notice Holders, or any such Person broker-dealers, attorneys or accountants in connection with such Registration Statementdisposition, in each case as is customary for similar "due diligence" examinations; provided, however, that all material non-public such persons shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Personpersons and shall be used solely for the purposes of exercising rights under this Agreement, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure filing of any information by such Person pursuant Registration Statement or the use of any Prospectus referred to clauses (ii) or in this Agreement), (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) becomes generally available to the extent such action is otherwise not inconsistent with, an impairment public other than as a result of a disclosure or in derogation of the rights and interests of the Holder or failure to safeguard by any such Person, person or (iv) such information has been made generally becomes available to any such person from a source other than the publicCompany and such source is not bound by a confidentiality agreement or is not otherwise under a fiduciary or other duty of trust to the Company, and provided that the foregoing inspection and information gathering shall, to the fullest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the counsel referred to in Section 5.
(nk) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) 45 days after the end of any 12-month period (or ninety (90) 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall cover said 12-month periods.
(l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations as are permitted by the Indenture and registered in such names as such Notice Holder may request in writing at least (2) Business Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(n) Prior to any public offering of Underlying Common Stock which are Registrable Securities, use its best efforts to cause all such Underlying Common Stock to be listed, or approved for listing, on the New York Stock Exchange or any other stock exchange on which securities of the same class issued by the Company are then listed.
(o) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.
(p) Upon (i) commencing at the end filing of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering the Initial Registration Statement and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fireffectiveness of the Initial Registration Statement
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or Not less than five Trading Days prior to the date filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such each Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents any document that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review each Holder copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing unless failure to file any no later than 3 Trading Days after the Holders have been so furnished copies of such amendment or supplement would involve a violation of the Securities Act or other applicable lawdocuments.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any similar provisions then in force) promulgated under amendment thereto and as promptly as reasonably possible provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 130% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (vi) hereof, shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than one Trading Day following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such a Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, ; and (vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that a post- effective amendment , makes it not in the best interest of the Company to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of allow continued availability or the Registration Statement or Prospectus; provided that any and all of any order preventing or suspending such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder's agreement to keep such information confidential, the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if Holders make no acknowledgement that any such order information is issuedmaterial, to obtain the withdrawal of any such order as soon as practicablenon-public information.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish Promptly deliver to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject . Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any offering of Registrable Securities, Use commercially reasonable efforts to register or qualify, and cooperate with qualify the Holders resale of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale as required under the applicable securities or blue sky Blue Sky laws of such jurisdictions each State within the United States as the managing underwriter or underwriters reasonably request any Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered therebyPeriod; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take qualified or subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(ig) Cooperate with the 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 solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jh) Upon the occurrence of any event contemplated by this Section 4(c)(v) or 4(c)(vi) above3, as promptly as practicable reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such eventt, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kii) Prior through (vi) of Section 3(d) above to suspend the effective date use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to suspend the availability of a Registration StatementStatement and Prospectus pursuant to clause (vi) of Section 3(d), (i) provide then the registrar for Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance use of the Prospectus may be resumed as promptly as is customary practicable, except that in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition case of such Registrable Securities in any underwritten offering to be made suspension of the Registrable Securities in accordance with this Agreementavailability of a Registration Statement and Prospectus pursuant to clause (vi) of Section 3(d), and in the Company shall not be required to take such connection, (i) make action until such representations and warranties to time as it shall determine that the underwriter or underwriters, with respect to the business continued availability of the Company Registration Statement and Prospectus is no longer not in the subsidiaries best interest of the Company. Notwithstanding the Company's right to suspend the use of the prospectus hereunder, and the Company shall remain liable to the Holders pursuant to Section 2(c) for any suspensions of the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 Statement hereunder which financial statements and financial data are, or are required to be, included in the Registration Statement, addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required otherwise require payment thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at any order suspending the end effectiveness of any fiscal quarter in which Registrable Securities are sold to an underwriter a Registration Statement, or to underwriters in a firm commitment or best efforts underwritten offering and (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(k) The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if not sold requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to an underwriter or meet its obligations hereunder with respect to underwriters in the registration of the Registrable Securities solely because any Holder fails to furnish such an offeringinformation within three Trading Days of the Company's request, commencing on any liquidated damages that are accruing at such time shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended, until such information is delivered to the firCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Singing Machine Co Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofhereunder, the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such Commission a Registration Statement on Form S-3 (but or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration shall be on another appropriate form in any event on or prior to the date of filing thereof required under this Agreementaccordance herewith) and use commercially reasonable efforts to cause such the Registration Statement to become effective and remain effective as provided herein; provided, however, that before not less than five (5) Business Days prior to the filing any such of the Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference)supplement thereto, the Company shall, upon request, afford promptly (i) furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Holder and the managing underwriter or underwriters, if any, an opportunity to review its Special Counsel copies of all such documents proposed to be filed filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holder and its Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of Special Counsel to such Holder, to conduct a reasonable time prior to investigation within the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation meaning of the Securities Act or other applicable lawAct.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders Holder of Registrable SecuritiesSecurities to be sold and its Special Counsel as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than five (5) days prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing no later than three (i3) Business Days following the day (i)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to the Holder); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy of such request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, ; (iiiiv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales any of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease hereby ceases to be true and correct in any all material respect, respects; (ivv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (vvi) of the happening occurrence of any event, event that makes any statement made in the existence of Registration Statement or Prospectus or any condition document incorporated or information becoming known deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each the Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyits Special Counsel, without charge, upon request, at least one conformed copy of the each Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each the Holder of Registrable Securities, their counsel and each underwriter, if anyits Special Counsel, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, selling Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify, and qualify or cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, selling Holder and their respective counsel its Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request Holder requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby a Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to taxation any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by applicable law, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringSecurities.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(vi), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(kj) Prior Use its best efforts to the effective date of a Registration Statement, (i) provide the registrar for the cause all Registrable Securities with certificates for relating to such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering Registration Statement to be made of listed on the Registrable Securities in accordance with this Agreement, Nasdaq SmallCap Market ("NASDAQ") and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documentsany other Subsequent Market, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries of the Company) and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired on which similar securities issued by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement, addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderthen listed.
(mk) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, selling Holder and any attorney or accountant retained by such representative of the Holders or underwriterselling Holder, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Companyits subsidiaries, and cause the officers, directors directors, agents and employees of the Company and the its subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Holder, attorney or accountant in connection with such the Registration Statement; provided, however, that all material non-public any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such PersonPersons, except to the extent that unless (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is required by court or administrative order or is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any respond to inquiries of the transactions contemplated hereby or arising hereunderregulatory authorities; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person; or (iii) of this sentence such information becomes available to permit such Person from a source other than the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such source is not known by such Person shall take all actions as are reasonably necessary to protect be bound by a confidentiality agreement with the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the publicCompany.
(nl) Comply with all applicable rules and regulations of the SEC Commission.
(m) The Company may require the selling Holder to furnish to the Company such information regarding the distribution of such Registrable Securities and make generally available the beneficial ownership of Common Stock held by such Holder as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. The Holder covenants and agrees that (i) it will not sell any Registrable Securities under the Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated in Section 3(f) and notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) it and its security holders earnings statements satisfying officers, directors or Affiliates, if any, will comply with the provisions of Section 11(a) prospectus delivery requirements of the Securities Act and Rule 158 thereunder as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement. The Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(i), or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. If there is a significant business opportunity (including but not limited to the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar rule promulgated under transaction) available to the Securities Act) no later than forty-five (45) days after Company or other material event or circumstance in respect of the end Company which the Company reasonably determines not to be in the Company's best interest to disclose, then the Company may suspend the right of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Holders to sell Registrable Securities are sold under a Registration Statement in respect of each transaction, event or circumstance for a period not to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and exceed 60 Business Days during the Effectiveness Period (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir"Blackout Period").
Appears in 1 contract
Sources: Registration Rights Agreement (Queen Sand Resources Inc)
Registration Procedures. In connection with The procedures to be followed by the Company and Selling Shareholder in a Registration Statement pursuant to this Agreement, and the respective rights and obligations of the Company and Selling Shareholder, with respect to any the preparation, filing and effectiveness of such Registration Statement pursuant to Sections 2.1Statement, 2.2 and 2.6 hereof, the Company shall, except are as otherwise providedfollows:
(a) Prepare and file with the SEC as soon as practicable each such Registration Statement The Company will, at least five (but in any event on or 5) Business Days prior to the date anticipated filing of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such a Registration Statement or any related Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments amendment or supplements supplement thereto (only for registrations pursuant to Section 2.1 hereof) (including documents other than amendments and supplements that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by referencedo nothing more than name Selling Shareholder and provide information with respect thereto), (i) unless available to Selling Shareholder through public filings with the Company shallCommission, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Selling Shareholder and the managing underwriter or its underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a and (ii) use its reasonable time prior efforts to address in each such document when so filed with the proposed filing thereof. The Company Commission such comments as Selling Shareholder reasonably shall not file any Registration Statement or Prospectus propose within three (for registrations pursuant to Sections 2.1 and 2.2 hereof3) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority Business Days of the Registrable Securities covered by delivery of such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure copies to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawSelling Shareholder.
(b) Prepare The Company will use reasonable best efforts to as promptly as reasonably possible (i) prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and post- effective amendments supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby for its Effectiveness Period and, subject to the time periods prescribed herebylimitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by Selling Shareholder; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; and (iii) respond to any comments received from the Commission with respect to each Registration Statement or any similar provisions then amendment thereto and, as promptly as reasonably possible provide Selling Shareholder true and complete copies of all correspondence from and to the Commission relating to such Registration.
(c) The Company will comply in force) promulgated under the Securities Act; and comply all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the Registration Statements and the disposition of all securities Registrable Securities covered by such each Registration Statement as so amended or in such prospectus as so supplementedStatement.
(cd) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, The Company will notify Selling Shareholder as promptly as reasonably practicable: (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act proposed to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or filed; (B) when the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after Commission notifies the Company has received notification of the matters to whether there will be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fira
Appears in 1 contract
Sources: Registration Rights Agreement (Kenon Holdings Ltd.)
Registration Procedures. In connection with the obligations filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 Section 2 hereof, the Company shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder the Company shall, except as otherwise provided:
(a) Prepare and file with the SEC as soon as practicable each such SEC, within the time periods prescribed herein, a Registration Statement (but in any event on or prior Registration Statements as prescribed by Section 2 hereof, and use all reasonable efforts to the date of filing thereof required under this Agreement) and cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including other than documents that would be are incorporated by reference or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by referencereference therein), the Company shall, upon request, shall furnish to and afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel Statement and the managing underwriter or underwriters, if any, an a reasonable opportunity to review copies of all such documents proposed to be filed a reasonable time (in each case, where possible, at least five Business Days prior to such filing, or such later date as is reasonable under the proposed filing thereofcircumstances). The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority in Amount of the Registrable Securities covered by such Registration Statement, their counsel, Statement or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawobject.
(b) Prepare and file with the SEC such amendments and post- post-effective amendments to the Registration Statement each Shelf Registration, as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed herebyEffectiveness Period; cause the related Prospectus to be supplemented by any Prospectus supplement required prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement as so amended or in such prospectus Prospectus as so supplemented. The Company shall be deemed not to have used all reasonable efforts to keep a Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in Selling Holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required by applicable law or unless the Company complies with this Agreement, including without limitation the provisions of Section 4(k) hereof.
(c) Notify the Selling Holders, a single counsel to such Holders of Registrable Securities, their counsel (chosen in accordance with Section 5(b) and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, without chargeat the sole expense of the Company, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules schedules, to the extent included therein and excluding documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in or amendments or supplements to such Registration Statement, Prospectus or documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading and (viiv) of the Company's reasonable ’s determination that a post- post-effective amendment to such a Registration Statement would be appropriate.
(d) Use every all reasonable effort efforts to prevent the issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to use all reasonable efforts to obtain the withdrawal of any such order as soon as practicableat the earliest possible moment, and provide immediate notice to the Selling Holders and the managing underwriter or underwriters, if any, of the withdrawal of any such order.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a the majority in Amount of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof)underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, underwriters (if any), or such Holders reasonably request determine is necessary to be included therein to comply with applicable lawtherein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, amendment and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests Selling Holder, a single counsel to such Holders (chosen in accordance with Section 5(b)) and to counsel for the Holders of Registrable Securities and each managing underwriterunderwriter or underwriters, if any, without charge, upon requestat the sole expense of the Company, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedulesschedules to the extent included therein, and of excluding all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference)exhibits.
(g) Deliver to each Holder of Registrable SecuritiesSelling Holder, their a single counsel to such Holders (chosen in accordance with Section 5(b)) and each underwriterthe managing underwriter or underwriters, if any, without chargeat the sole expense of the Company, as many copies of each the Prospectus (including each form of preliminary prospectus) and each amendment or supplement thereto thereto, excluding any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last second paragraph of this Section 44(s) hereof, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Selling Holders of Registrable Securities and the managing underwriter or underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use all reasonable efforts to register or qualify, to the extent required by applicable law, and to cooperate with the Selling Holders of Registrable Securities, and the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, of such Registrable Securities for or offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any selling Holder, or the managing underwriter or underwriters underwriters, if any, reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its the Company’s counsel to perform blue sky Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); , keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the applicable Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, and their respective counsel to facilitate the timely preparation and delivery of certificates representing shares of Registrable Securities to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC")Company; and enable such shares of Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(j) Use all reasonable efforts to cause the Registrable Securities covered by any Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be reasonably necessary to enable the Selling Holder or Holders thereof or the managing underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities, 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.
(k) Upon the occurrence of any event contemplated by Section 4(c)(vparagraph 4(c)(ii), 4(c)(iii) or 4(c)(vi4(c)(iv) abovehereof, as promptly as practicable prepare and (subject to Section 4(a) hereof) file with the SEC, at the sole expense of the Company, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, or file such with the SEC any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kl) Prior to the effective date of a the first Registration StatementStatement relating to the Registrable Securities, (i) provide the registrar Trustee with certificates for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC The Depository Trust Company and (ii) provide a CUSIP number for such securitiesthe Registrable Securities.
(lm) Enter In connection with any underwritten offering of Registrable Securities pursuant to a Shelf Registration, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings of securities similar to the Registrable Securities and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreementand, and in such connection, (i) make such representations and warranties to to, and covenants with, the managing underwriter or underwriters, underwriters with respect to the business of the Company and the its subsidiaries of the Company(including any acquired business, properties or entity, if applicable) 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, offerings of securities similar to the Registrable Securities and confirm the same in writing if and when requested; (ii) use reasonable efforts to obtain opinions the written opinion of counsel to the Company and written updates thereofthereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the managing underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings of securities similar to the Registrable Securities and such other matters as may be reasonably requested by the managing underwriter or underwriters; and (iii) use reasonable efforts to obtain "“cold comfort" ” letters and updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 or incorporated by reference in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters in connection with underwritten offerings of securities similar to the Registrable Securities and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of on Auditing Standards No.72; No. 72, as amended, and (iv) if an underwriting agreement is entered intoAU 722, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreementas amended. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunderby such underwriting agreement.
(mn) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any managing underwriter or underwriters participating in any such disposition of Registrable Securities, if any, and any attorney attorney, accountant or accountant other agent retained by any Selling Holder of such representative of Registrable Securities being sold, solely to the Holders extent requested in connection with such sale, or underwriterunderwriter (collectively, the “Inspectors”), at the offices where normally kept, during reasonable business hourshours at such time or times as shall be mutually convenient for the Company and the Inspectors as a group, all financial and other records, pertinent corporate documents and properties instruments of the Company and its subsidiaries (collectively, the subsidiaries of the Company“Records”) as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and the its subsidiaries of the Company to supply all information in each case reasonably requested by any such Person Inspector in connection with such Registration Statement; provided. Records that the Company determines, howeverin good faith, to be confidential and any Records that all material non-public information it notifies the Inspectors are confidential shall not be kept confidential disclosed by such Person, except to the extent that any Inspector unless (i) the disclosure of such information Records is necessary or advisable to avoid or correct a material misstatement or material omission in the such Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is requiredStatement, (ii) the release of such information Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is is, in the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person Inspector and arising out of, based upon, relating to to, or involving this Agreement or any of the transactions contemplated hereby or arising hereunderhereunder or (iv) the information in such Records has been made generally available to the public other than through the acts of such Inspector; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person Inspector pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firprovision
Appears in 1 contract
Sources: Registration Rights Agreement (Powerwave Technologies Inc)
Registration Procedures. In connection with The Company will keep the obligations Underwriter advised in writing as to the initiation of each registration and as to the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofcompletion thereof. At its expense, the Company shall, except as otherwise providedwill use its reasonable best efforts to:
(a) Prepare Permit the Underwriter and file a single firm of counsel, initially ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP or such other counsel as thereafter designated as Underwriter's counsel by the Underwriter, to review and comment upon the Registration Statement and all amendments and supplements thereto at least five (5) days prior to their filing with the SEC as soon as practicable each SEC, and not file any document in a form to which such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereofreasonably objects. The Company shall not file any submit a request for acceleration of the effectiveness of a Registration Statement or Prospectus any amendment or supplement thereto that relates to the transactions contemplated by this Agreement without the prior approval of such counsel, which approval shall not be unreasonably withheld;
(b) The Company shall provide a CUSIP number, a transfer agent and registrar for registrations pursuant all such Registrable Securities;
(c) If requested by the Underwriter, the Company shall immediately incorporate in a prospectus supplement or post-effective amendment such information as the Underwriter requests to Sections 2.1 be included therein relating to the sale and 2.2 hereof) or distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being issued, the Underwriting Price being paid therefor and with respect to any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if other terms of the Holders of a majority underwritten offering of the Registrable Securities covered by to be sold in such Registration Statement, their counsel, offering; make all required filings of such prospectus supplement or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such post-effective amendment or supplement would involve a violation as soon as notified of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement as may be necessary to keep such Registration Statement continuously effective for the time periods prescribed hereby; cause the related Prospectus matters to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or incorporated in such prospectus as so supplemented.supplement or post-effective amendment; and in connection therewith supplement or make amendments to any Registration Statement if requested by the Underwriter;
(cd) Furnish such number of Prospectuses and amendments and supplements thereto, and other documents incident thereto, as the Underwriter from time to time may reasonably request; and
(e) Notify the Holders of Registrable Securities, their Underwriter and its counsel and (as designated in writing by the managing underwriter or underwriters, if any, promptly (but in any event within two (2Underwriter) Business Days)promptly, and confirm such notice (a "Notice") in writing, (i) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been filed, and, with respect to a the Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder mayeffective, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance any request by the SEC of any stop order suspending the effectiveness of such Registration Statement for amendments or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or information becoming known that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act and 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 conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if any, without charge, upon request, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the last paragraph of this Section 4, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to register or qualify, and cooperate with the Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the securities covered thereby; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any jurisdiction where it is not then so subject.
(i) Cooperate with the 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, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment supplements to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, file such with the SEC so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingfor additional information.
(k) Prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the fir
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations of hereunder the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereof, the Company shall, except Holders (as otherwise providedapplicable) shall have the following obligations:
(a) Prepare Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex A (a “Selling Stockholder Questionnaire”) by the end of the second (2nd) Trading Day following the date on which such Holder receives such Selling Stockholder Questionnaire.
(i) The Company shall prepare and file with the SEC as soon as practicable each Commission such amendments, including post-effective amendments, to a Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed a reasonable time prior to the proposed filing thereof. The Company shall not file any Registration Statement or Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object used in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments and post- effective amendments to the Registration Statement connection therewith as may be necessary to keep such a Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed hereby; Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplementProspectus supplement (subject to the terms of this Agreement), and and, as so supplemented or amended, to be filed pursuant to Rule 424 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any similar provisions then amendment thereto, and (iv) comply in force) promulgated under the Securities Act; and comply all material respects with the applicable provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of Common Shares then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) The Company shall notify the Holders of Registrable SecuritiesSecurities to be sold (which notice shall, their counsel pursuant to clauses (ii) through (v) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and no later than three (3) Trading Days following the managing underwriter or underwriters, if any, promptly day (but in any event within two (2) Business Days), and confirm such notice in writing, (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment to a Registration Statement has been filed, and, and (B) with respect to a Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules and exhibits)effective, (ii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or all of any order preventing or suspending the use of any preliminary prospectus Registrable Securities or the initiation or threatening of any proceedings Proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, (viv) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in a Registration Statement ineligible for inclusion therein or any condition statement made in a Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such revisions to a Registration Statement, Prospectus or other documents so that, in the case of such a Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (viv) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company's reasonable determination that , makes it not in the best interest of the Company to allow continued availability of a post- effective amendment to such Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any information which would be appropriateconstitute material, non-public information regarding the Company or any of its Subsidiaries.
(de) Use every reasonable effort The Company shall use its best efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicable.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as earliest practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statementmoment.
(f) Furnish The Company shall furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the each such Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those previously furnished or incorporated by reference)) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(g) Deliver to each Holder of Registrable Securities, their counsel and each underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject Subject to the last paragraph terms of this Section 4Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) The Company shall cooperate with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as requested by any such Holder, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor.
(i) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, the Company shall use its best efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby each Registration Statement; provided, howeverthat, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ij) Cooperate If requested by a Holder, the Company shall cooperate with the Holders of Registrable Securities and the managing underwriter or underwriters, if any, such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be solddelivered to a transferee pursuant to a Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders any such Holder may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(jk) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(d), as promptly as practicable reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to the purchasers of Registrable Securities being sold thereunderdelivered, neither a Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
. If the Company notifies the Holders in accordance with clauses (kii) Prior through (v) of Section 3(d) above to suspend the effective date use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(k) to suspend the availability of a Registration Statement, Statement and Prospectus for a period not to exceed sixty (i60) provide the registrar for the Registrable Securities with certificates for such securities calendar days (which need not be consecutive days) in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securitiesany 12-month period.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the The Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (m)) and that such Person shall take all actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available to the public.
(n) Comply comply with all applicable rules and regulations of the SEC and make generally available Commission.
(m) The Company shall use its best efforts to its security holders earnings statements satisfying the provisions maintain eligibility for use of Section 11(a) of the Securities Act and Rule 158 thereunder Form F-3 or Form F-1 (or any similar rule promulgated under successor forms thereto) for the Securities Actregistration of the resale of Registrable Securities.
(n) no later than forty-five (45) days after The Company may require each selling Holder to furnish to the end Company a certified statement as to the number of Common Shares beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares. During any 12-month period (or ninety (90) days after periods that the end Company is unable to meet its obligations hereunder with respect to the registration of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities solely because any Holder fails to furnish such information within three (3) Trading Days of the Company’s request, any liquidated damages that are sold accruing at such time as to an underwriter or such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold such Holder only, until such information is delivered to an underwriter or to underwriters in such an offering, commencing on the firCompany.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than three Trading Days prior to the filing of the Company with respect to any Registration Statement pursuant to Sections 2.1, 2.2 and 2.6 hereofor any related Prospectus or any amendment or supplement thereto, the Company shall, except as otherwise provided:
(ai) Prepare and file with the SEC as soon as practicable each such Registration Statement (but in any event on or prior to the date of filing thereof required under this Agreement) and cause such Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any such Registration Statement or any Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall, upon request, afford promptly furnish to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the prompt review of such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable time prior to investigation within the proposed filing thereofmeaning of the Securities Act. The Company shall not file any the Registration Statement or any such Prospectus (for registrations pursuant to Sections 2.1 and 2.2 hereof) or any amendments or supplements thereto (only for registrations pursuant to Section 2.1 hereof) if which the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriter or underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of the Securities Act or other applicable lawgood faith.
(bi) Prepare and file with the SEC Commission such amendments and post- amendments, including post-effective amendments amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement continuously effective as to the applicable Registrable Securities for the time periods prescribed herebyEffectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 424; (iii) respond as promptly as reasonably possible, and in any event within ten Trading Days, to any comments received from the Commission with respect to the Registration Statement or any similar provisions then in force) promulgated under amendment thereto and, as promptly as reasonably possible, upon request, provide the Securities ActHolders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such prospectus Prospectus as so supplemented.
(c) Notify the Holders of Registrable SecuritiesSecurities to be sold as promptly as reasonably possible (and, their counsel in the case of (i)(A) below, not less than one Trading Day prior to such filing) and the managing underwriter or underwriters, (if any, promptly (but in requested by any event within two (2such Person) Business Days), and confirm such notice in writing, writing promptly following the day (ii)(A) when a Prospectus or any prospectus Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, ; (B) when the Commission notifies the Company whether there will be a “review” of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to a the Registration Statement or any post-effective amendment, when the same has become effective effective; (including in such notice a written statement that ii) of any Holder may, upon request, obtain, without charge, one conformed copy request by the Commission or any other Federal or state governmental authority during the period of such effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or post-effective amendment including financial statements and schedules and exhibits), Prospectus or for additional information; (iiiii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such the Registration Statement covering any or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales all of the Registrable Securities or the representations and warranties initiation of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below, to the knowledge of the Company, cease to be true and correct in any material respect, Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any proceeding Proceeding for such purpose, ; and (v) of the happening occurrence of any event, event or passage of time that makes the existence of financial statements included in the Registration Statement ineligible for inclusion therein or any condition statement made in the Registration Statement or information becoming known Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the making of any changes in such Registration Statement, Prospectus or other documents so that, in the case of such the Registration Statement, it will conform in all material respects with the requirements of the Securities Act and it will not contain any untrue statement of a material fact Statement 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 conform in all material respects with as the requirements of the Securities Act and case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post- effective amendment to such Registration Statement would be appropriate.
(d) Use every its commercially reasonable effort efforts to prevent avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain at the withdrawal of any such order as soon as practicableearliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwriting offering (only for registrations pursuant to Section 2.1 hereof), (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holders of Registrable Securities and each managing underwriter, if anyHolder, without charge, upon request, at least one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including exhibits those incorporated by reference)) promptly after the filing of such documents with the Commission.
(gf) Deliver Promptly deliver to each Holder of Registrable Securities, their counsel and each underwriter, if anyHolder, without charge, as many copies of each the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, subject to request in connection with resales by the last paragraph Holder of this Section 4, the Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any offering resale of Registrable SecuritiesSecurities by a Holder, use its commercially reasonable efforts to register or qualify, and qualify or cooperate with the selling Holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of, of such Registrable Securities for offer and sale the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as the managing underwriter or underwriters any Holder reasonably request requests in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of the Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform blue sky investigations and file registrations and qualifications required to be filed pursuant to this Section 4(h); keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the securities Registrable Securities covered therebyby the Registration Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take subject the Company to any action that would subject it to general service of process material tax in any such jurisdiction where it is not then so subject or (C) become subject file a general consent to taxation service of process in any jurisdiction where it is not then so subjectsuch jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the 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 solddelivered to a transferee pursuant to the Registration Statement, which certificates shall not bear any be free, to the extent permitted by the Purchase Agreement, of all restrictive legends whatsoever legends, and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or any such Holders may reasonably request at least two Business Days prior to any sale of Registrable Securities in a firm commitment underwritten public offeringrequest.
(ji) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above3(c)(v), as promptly as practicable reasonably possible, prepare a supplement or amendment, including a post-effective amendment amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and, subject to Section 4(a) hereof, and file such with the SEC any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registrable Securities being sold thereunder, Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Prior to . If the effective date of a Registration Statement, (i) provide Company notifies the registrar for the Registrable Securities with certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities.
(l) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or disposition of such Registrable Securities in any underwritten offering to be made of the Registrable Securities Holders in accordance with this Agreement, and in such connection, (i) make such representations and warranties to the underwriter or underwriters, with respect to the business of the Company and the subsidiaries of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) use reasonable efforts to obtain opinions of counsel to the Company and updates thereof, addressed to the underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if applicable, the subsidiaries 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 of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by the managing underwriter or underwriters and as permitted by the Statement of Auditing Standards No.72; and (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures (or such other provisions and procedures acceptable to Holders of a majority of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to such agreement. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders of Registrable Securities being sold, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney or accountant retained by such representative of the Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company, and cause the officers, directors and employees of the Company and the subsidiaries of the Company to supply all information in each case reasonably requested by any such Person in connection with such Registration Statement; provided, however, that all material non-public information shall be kept confidential by such Person, except to the extent that (i) the disclosure of such information is necessary or advisable to avoid or correct a misstatement or omission in the Registration Statement or in any Prospectus; provided, however, that prior notice is given to the Company, and the Company's legal counsel and such Holder's legal counsel concur that disclosure is required, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is necessary in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Person and arising out of, based upon, relating to or involving this Agreement or any of the transactions contemplated hereby or arising hereunder; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Person pursuant to clauses (ii) or through (iiiv) of this sentence Section 3(c) above to permit suspend the Company use of any Prospectus until the requisite changes to obtain a protective order (or waive such Prospectus have been made, then the provisions of this paragraph (m)) and that such Person Holders shall take all actions as are reasonably necessary to protect the confidentiality suspend use of such information (if Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the extent such action is otherwise not inconsistent withavailability of a Registration Statement and Prospectus, an impairment of or in derogation of the rights and interests of the Holder or any such Person, or (iv) such information has been made generally available subject to the publicpayment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(nj) Comply in all material respects with all applicable rules and regulations of the SEC Commission.
(k) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and make generally available to its security holders earnings statements satisfying dispositive control over the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (90) days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in such an offering, commencing on the firShares.
Appears in 1 contract
Sources: Registration Rights Agreement (Pro Pharmaceuticals Inc)