Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein: (i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law; (ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement; (iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States; (iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act; (v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction); (vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information); (vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested; (viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews; (ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed; (x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold; (xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and (xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any: (1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder; (3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; (4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and (5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount. (b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration. (c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities. (d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. (e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement. (f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering). (g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 6 contracts
Sources: Stockholders Agreement (Temasek Holdings (Private) LTD), Stock Purchase Agreement (Temasek Holdings (Private) LTD), Stockholders Agreement (Univar Nv)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the obligations of the Company of joining in a request that with respect to any Registrable Shares be registered Preference Registration Statement pursuant to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration Sections 2.1 and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto2.6 hereof, the Company shall, except as soon as practical as provided hereinotherwise provided:
(ia) subject At least five days prior to the other provisions initial filing of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Preference Registration Statement or Prospectus or any amendments or supplements thereto and, and at least two days prior to the extent reasonably practicable, documents filing of any amendment or supplement thereto (including any document that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant reference), furnish to a request for a Demand Registrationthe Preference Warrant Agent, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel Holders and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will (other than those incorporated or deemed to be incorporated by reference) shall be subject to the reasonable review and comment of such counselHolders, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, andunderwriters, if requested by any, and cause the officers and directors of the Company, counsel to the Company and independent certified public accountants to the Company to respond to such counselreasonable inquiries as shall be necessary, provide such counsel reasonable opportunity to participate in the preparation opinion of counsel to such Registration Statement and each Prospectus included therein and such other opportunities underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to ; PROVIDED that the Company’s books foregoing inspection and records, officers, accountants and other advisorsinformation gathering shall be coordinated on behalf of the Holders by MGPE. The Company shall not file any such Preference Registration Statement or Prospectus, related Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders Holders of a majority of the Preference Registrable Shares covered by Securities included in such Preference Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, object on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments, including post-effective amendments and supplements to such each Preference Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Preference Registration Statement continuously effective for the applicable time period required hereunder; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the applicable requirements provisions of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Exchange Act with respect to the disposition of all the Shares securities covered by such Preference Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Preference Registration Statement;Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Preference Registrable Securities to be sold and the managing underwriters, if any, promptly, and (if requested by any such person) confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment is proposed to be filed, and (B) with respect to a Preference Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Preference Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC, any state securities commission, any other governmental agency or any court of any stop order suspending the effectiveness of such Preference Registration Statement or of any Registration Statement, order or injunction suspending or enjoining the use of a Prospectus or the lifting effectiveness of a Preference Registration Statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Preference Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification the happening of any event, the existence of any information becoming known that makes any statement made in effect in such jurisdictions for as long as the applicable a Preference Registration Statement may or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or omit to state any material fact required to be kept effective under this Agreement (provided stated therein or necessary to make the statements therein, not misleading, and that in the Company case of the Prospectus, it will not be required to (A) qualify generally to do business in contain any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of or, andif issued, obtain the withdrawal of any order enjoining or suspending the effectiveness of the Preference Registration Statement or the use of a Prospectus or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Preference Registrable Securities covered thereby for sale in any jurisdiction described in Section 4(h) at the request earliest practicable moment.
(e) If requested by the managing underwriters, if any, or if none, by the Holders of a majority of the Preference Registrable Securities being sold pursuant to such Preference Registration Statement, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or if none, such Holders reasonably believe should be included therein, and (ii) make all required filings of such StockholderProspectus supplement or such post-effective amendment under the Securities Act as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that the Company shall not be required to take any action pursuant to this Section 4(e) that would in the opinion of counsel for the Company, violate applicable law.
(f) Upon written request to the Company, furnish to each Holder of Preference Registrable Securities to be sold pursuant to a Registration Statement and each managing underwriter, if any, without charge, at least one conformed copy of the Preference Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested (including those previously furnished or incorporated by reference) as soon as practicable after the filing of such documents with the SEC.
(g) Deliver to each Holder of Preference Registrable Securities to be sold pursuant to a Preference Registration Statement and each managing underwriter, if any, without charge, as many copies of each Prospectus (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to use reasonable of such Prospectus and each amendment or supplement thereto and each document supplemental thereto by each of the selling Holders of Preference Registrable Securities and the underwriters or agents, if any, in connection with the offering and sale of the Preference Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Preference Registrable Securities, use its best efforts to prepareregister or qualify or cooperate with the Holders of Preference Registrable Securities to be sold, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Preference Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as any such Holder or underwriter reasonably requests in writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Preference Registration Statement is required to be kept effective hereunder and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Preference Registrable Securities covered by the applicable Preference Registration Statement; PROVIDED, HOWEVER, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or to taxation in any jurisdiction where it is not so subject.
(i) In connection with any sale or transfer of Preference Registrable Securities that will result in such securities no longer being Preference Registrable Securities, cooperate with the Holders of Preference Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Preference Registrable Securities to be sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and to enable such Preference Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such Holders may reasonably request at least two business days prior to any sale of Preference Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) above, as soon promptly as practical, practicable prepare a supplement or amendment, including if appropriate a post-effective amendment to such each Preference Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered to any prospective purchasers of such Registrable Sharesdelivered, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading misleading.
(which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event k) Prior to the extent effective date of a Preference Registration Statement, (i) provide the registrar for the Preference Warrants and Preference Registrable Securities with certificates for such information would constitute material non-public information);securities in a form eligible for deposit with DTC and (ii) provide CUSIP numbers for such securities.
(viil) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreement (including an underwriting agreement containing in such provisions (including provisions for indemnificationform, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as in connection therewith (including those reasonably requested by the managing underwriters underwriters, if any, or the Holders of such offering may request a majority of the Preference Registrable Securities being sold) in order to expedite or facilitate the disposition of such Preference Registrable SharesSecurities, includingand, causing its officers to use their reasonable best efforts to support whether or not an underwriting agreement is entered into and whether or not the marketing of the Registrable Shares covered by the Registration Statement registration is an underwritten registration, (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders Holders of such Preference Registrable Shares Securities and the underwriter or underwriters, if any, with respect to the business of the Company and its material Subsidiariesthe subsidiaries of the Company (including with respect to businesses or assets acquired or to be acquired by any of them), and the Preference Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, and confirm the same if and any when requested;
; (viiiii) in the case obtain opinions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and counsel to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, addressed to each selling Holder of Preference Registrable Securities and counsels to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any), covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided(iii) use their best efforts to obtain customary "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, howeverif necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Preference Registration Statement), addressed (where reasonably possible) to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings; (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures no less favorable to the Selling Holders and the underwriters, if any, than those set forth in Section 5 hereof (or such other provisions and procedures acceptable to Holders of a majority of Preference Registrable Securities covered by such Preference Registration Statement and the managing underwriter, if any); and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Preference Registrable Securities being sold and the managing underwriters or underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and evidence compliance with any customary conditions contained in the underwriting agreement or other agreements entered into by the Company.
(m) Make available for inspection by a representative of the selling Holders of Preference Registrable Securities, any underwriter participating in any such disposition of Preference Registrable Securities, if any, and any attorney, consultant or accountant retained by such representative of the selling Holders of Preference Registrable Securities or underwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during the reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the subsidiaries of the Company (including with respect to businesses and assets acquired or to be acquired to the extent that such information is available to the Company), and cause the officers, directors, agents and employees of the Company and its subsidiaries of the Company (including with respect to businesses and assets acquired or to be acquired to the extent that such information is available to the Company) to supply all information in each case reasonably requested by any such Inspector in connection with such Preference Registration Statement; PROVIDED, HOWEVER, that such records persons shall first agree in writing with the Company that any information that is reasonably and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued in good faith designated by the Company are then listed;in writing as confidential at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to U.S. securities laws in connection with the filing of the Preference Registration Statement or the use of any Prospectus), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard such information by such person or (iv) such information becomes available to such person from a source other than the Company and its subsidiaries and such source is not bound by a confidentiality agreement; PROVIDED, FURTHER that the foregoing investigation shall be coordinated on behalf of the selling Holders of Preference Registrable Securities by MGPE.
(xn) provide a transfer agent Comply with all applicable rules, regulations and registrar for all such Registrable Shares not later than policies of the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) SEC and make generally available to Stockholders a consolidated its securityholders earnings statement (which need not be audited) for a period statements satisfying the provisions of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more thereunder no later than 60 days after the commencement end of any 12-month period (or 135 days after the offering).
end of any 12-month period if such period is a fiscal year) (gi) Notwithstanding anything commencing at the end of any fiscal quarter in which Preference Registrable Securities are sold to the contrary in this Article V, the Company shall not be required an underwriter or to file a Registration Statement or include Registrable Shares underwriters in a Registration Statement unless it has received from each Stockholder participating firm commitment or reasonable efforts underwritten offering and (ii) if not sold to an underwriter or to underwriters in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.an
Appears in 5 contracts
Sources: Preference Warrant Registration Rights Agreement (Chase Cheryl A), Preference Warrant Registration Rights Agreement (Chase Arnold L), Preference Warrant Registration Rights Agreement (Darland Trust)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the Registration to be effected pursuant to the Company Resale Shelf Registration Statement, and whenever the holders of joining in a request Registrable Securities have requested that any Registrable Shares Securities be registered pursuant to this Article VAgreement, the Company Parent shall use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereof, and, and pursuant thereto, thereto the Company shall, Parent shall as soon expeditiously as practical as provided hereinreasonably possible:
(ia) subject to except in connection with a Piggyback Registration, prepare in accordance with the other provisions Securities Act and all applicable rules and regulations promulgated thereunder and, within 60 days following receipt of this Article Vsuch request, use reasonable best efforts to prepare and file with the SEC Commission (1) in the case such request requires a subsequent Resale Shelf Registration Statement Statement, a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Shares Securities and use commercially reasonable efforts to cause such registration statement to become effective, or (2) in the case an effective Resale Shelf Registration Statement is on file with the Commission and effective, an applicable prospectus or prospectus supplement for the resale of Registrable Securities pursuant to become effective such Resale Shelf Registration Statement (unless it is automatically effective upon filing), provided, however, provided that at least five (5) Business Days before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company Parent shall furnish or otherwise make available to counsel selected by the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, Applicable Approving Party copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will shall be subject to the reasonable review and comment of such counsel);
(b) notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, and such other documents reasonably requested (B) the receipt by such counsel, including the Parent or its counsel of any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) notification with respect to a Demand Registration to which the holders suspension of a majority the qualification of the Registrable Shares covered by such Registration Statement (or their counsel) Securities for sale in any jurisdiction or the managing underwriter(s)initiation or threatening of any proceeding for such purpose, if any, shall reasonably object, in writing, on a timely basis, unless, in and (C) the opinion effectiveness of the Company’s counsel, such filing is necessary to comply with applicable laweach registration statement filed hereunder;
(iic) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statementregistration statement;
(iiid) use reasonable best efforts furnish to obtain the withdrawal each seller of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary and final prospectus), each Free-Writing Prospectus and any supplement thereto such other documents as each selling Stockholder such seller may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered Securities owned by such Registration Statement seller;
(e) during any period in conformity which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the requirements Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(vf) use its commercially reasonable best efforts to register register, qualify or qualify secure an exemption from registration with respect to such Registrable Shares Securities under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder the lead underwriter or the Applicable Approving Party reasonably requests and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such registration or qualification in effect seller to consummate the disposition in such jurisdictions for as long as of the applicable Registration Statement may be required to be kept effective under this Agreement Registrable Securities owned by such seller (provided that the Company will Parent shall not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 4(f), (B) subject itself to taxation in any such jurisdiction or (Cii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(vig) promptly notify in writing each selling Stockholder and each distributor seller of such Registrable Shares identified 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 Stockholderregistration statement or prospectus or for additional information, and (iii) at any time when a Prospectus prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributorAct, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such Registration Statement registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Parent promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Parent are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Parent as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Parent’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viim) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Parent to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Parent in writing, which in the reasonable judgment of such holder and its counsel should be included;
(o) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing event of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the Registration Statementuse of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Parent shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(4p) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(q) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its commercially reasonable efforts to obtain a cold comfort letter from the Parent’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the receipt type customarily covered by cold comfort letters as the Company underwriters in such registration reasonably request;
(t) provide a legal opinion of any notification the Parent’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of the closing under the underwriting agreement), with respect to the suspension registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the qualification type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Parent files an Automatic Shelf Registration Statement covering any Registrable Shares for sale under Securities, use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the applicable securities period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Parent does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or blue sky laws of any jurisdictiontimes as the Registrable Securities are to be sold; and
(5w) if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder Parent is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer freere-writing prospectus (as such term evaluate its WKSI status the Parent determines that it is defined in Rule 405 under not a WKSI, use its commercially reasonable efforts to refile the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any on Form S-3 and keep such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein including by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be filing a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback new Resale Shelf Registration or Shelf Registration, at least five days prior to if necessary) during the anticipated filing date of the Registration Statement, information regarding period throughout which such Stockholder reasonably requested by the Company and registration statement is required to achieve effectiveness of such Registration Statementbe kept effective.
Appears in 5 contracts
Sources: Preferred Stock Purchase Agreement (Ondas Holdings Inc.), Registration Rights Agreement (Ondas Holdings Inc.), Registration Rights Agreement (Ondas Holdings Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company registration of joining in a request that any Registrable Shares be Securities under the Securities Act and in connection with any distribution of registered securities pursuant thereto as contemplated by this Agreement, or any analogous Rule 144A offering pursuant to this Article VSection 5.02(f), the Company shall use reasonable best efforts as promptly as reasonably practicable, subject to effect, as soon as practical as provided in the other provisions of this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinAgreement:
(i) subject to the other provisions of this Article VSection 5.01(a), use reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Article V; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a such Registration Statement or Prospectus or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice (but excluding amendments and supplements that do nothing more than name Selling Holders (as defined below) and provide information with respect thereto), the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriter(s), and such other documents reasonably requested by any such counsel, including any comment letter letters from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered underwritten offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors. The ; provided that 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 shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered kept confidential by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary persons subject to comply with applicable lawcustomary exceptions;
(ii) use reasonable best efforts at or before any Registration Statement covering the Notes is declared or otherwise becomes effective, qualify the Indenture under the Trust Indenture Act of 1939, as amended, and appoint a new trustee under the Indenture to the extent such qualification requires the appointment of a new trustee thereunder;
(iii) subject to Section 5.02, prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesthis Article V;
(iv) deliverif requested by the lead managing underwriter(s), without chargepromptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 5.03(a)(iv) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(v) furnish to the Selling Holders and each underwriter, if any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under , and such other securities or blue sky laws of documents as such U.S. jurisdictions as each selling Stockholder reasonably requests Selling Holders and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vunderwriter(s), (B) subject itself if any, may reasonably request in order to taxation in any facilitate the public sale or other disposition of the Registrable Securities owned by such jurisdiction or (C) consent to general service of process in any such jurisdiction)Selling Holders;
(vi) notify use reasonable efforts to cause such Registrable Securities to be listed on each selling Stockholder securities exchange on which similar securities issued by the Company are then listed, and each distributor to apply for any necessary “CUSIPs” or analogous codes to identify such securities;
(vii) use reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(viii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to such Stockholder, Registration Statement or the prospectus; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions clause (including provisions for indemnification, lockups, opinions of counsel and comfort lettersF), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to notice need not include the nature or details concerning such confidential treatment as is customary for underwriters’ due diligence reviewsevent;
(ix) use reasonable best efforts to cause all obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Shares Securities for sale in any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (ix) be obligated to be listed on each primary securities exchange so qualified, (if anyB) on which securities subject itself to taxation in any such jurisdiction or (C) file a general consent to service of the same class issued by the Company are then listedprocess in any such jurisdiction;
(x) provide a transfer cooperate with each seller of Registrable Securities and each underwriter or agent and registrar for all participating in the disposition of such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before Securities and their respective counsel in connection with any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares filings required to be soldmade with the Financial Industry Regulatory Authority, Inc.;
(xi) make generally available prior to Stockholders a consolidated earnings statement any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the Selling Holders in connection with the registration or qualification (which need or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be auditedrequired to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(athis clause (xi) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of the Securities Act and Rule 158 thereunder; andprocess in any such jurisdiction;
(xii) promptly notify each selling Stockholder use reasonable efforts to cooperate with the holders to facilitate the timely preparation and the managing underwriters delivery of any Underwritten Offering, if any:
(1) when the Registration Statement, any precertificates or book-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment entry securities representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement has been filed andStatements, with respect which certificates or book-entry securities shall be free, to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request extent permitted by the SEC or Indenture and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any other Government Entity for amendments or supplements to such holders may request in writing; and in connection therewith, if required by the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to Company’s transfer agent, the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending will promptly after the effectiveness of the Registration Statement;
(4) of the receipt Statement cause to be delivered to its transfer agent when and as required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the Company transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of any notification with respect to the suspension such shares of the qualification of any Registrable Shares for sale Securities under the applicable securities or blue sky laws of any jurisdictionRegistration Statement; and
(5xiii) if at agrees with each holder of Registrable Securities that, in connection with any time Underwritten Offering or other resale pursuant to the Company has reason Registration Statement in accordance with the terms hereof, it will use reasonable efforts to believe that negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the representations and warranties terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viiCompany), (viii) including using reasonable efforts to procure customary legal opinions and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountauditor “comfort” letters.
(b) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 5.03(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(viii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(viii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 5 contracts
Sources: Investment Agreement (Zuora Inc), Investment Agreement (Zuora Inc), Investment Agreement (Cornerstone OnDemand Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 4.1, Section 4.2 or Section 4.3, the Company shall use reasonable best efforts as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration statement to effect, as soon as practical as provided in this Article V, the effect such registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions terms of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), IV; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of the Demand Shareholders which are including Registrable Shares covered by Securities in such Registration Statementregistration (“Selling Shareholders”), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Registrable Shares covered by such Registration Statement (or Requesting Shareholder(s), their counsel) counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawApplicable Law;
(ii) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article IV, and comply in all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain if requested by the withdrawal of any order suspending the effectiveness of any Registration Statementlead managing underwriter(s), if any, or the lifting holders of any suspension a majority of the qualification then outstanding Registrable Securities being sold in connection with an Underwritten Offering (including a Block Trade), promptly include in a prospectus supplement or exemption from qualification post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any Registrable Shares for sale in any jurisdiction actions under this Section 4.6(a)(iii) that are not, in the United Statesopinion of counsel for the Company, in compliance with Applicable Law;
(iv) deliverfurnish to the Selling Shareholders and each underwriter, without chargeif any, of the securities being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholders;
(v) use commercially reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholders and any underwriter of the securities being sold by such Selling Shareholders shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable such Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholders, except that the Company will shall not for any such purpose be required to to:
(A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v), ) be obligated to be so qualified;
(B) subject itself to taxation in any such jurisdiction or jurisdiction; or
(C) file a general consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of use commercially reasonable efforts to cause such Registrable Shares identified by Securities (if such Stockholder, at any time when a Prospectus relating thereto would be required under the Registrable Securities Act are shares of Company Common Stock) to be delivered by such distributor, listed on each securities exchange on which shares of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)Common Stock are then listed;
(vii) in use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, such registration statement;
(viii) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationagreement) in form, lockups, opinions scope and substance as is customary in underwritten offerings of counsel Company Common Stock by the Company and comfort letters), and use its commercially reasonable efforts to take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if any underwriting agreement has been entered into, the Company’s officers same shall contain customary indemnification provisions and employees procedures with respect to supply information all parties to be indemnified pursuant to Section 4.9, except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder holders of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards a majority of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which Registrable Securities being sold, their counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders of the Registrable Sharesextent required thereunder;
(ix) to such underwriters and each selling holder of Registrable Shares in connection therewithwith an Underwritten Offering (including a Block Trade), use commercially reasonable efforts to obtain for the underwriter(s) (A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel underwriters and underwriters(B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(x) make available for inspection by the Selling Shareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney, agent or accountant in connection with such registration statement; provided, however, that such records and other the Company shall not be required to provide any information provided under clauses this Section 4.6(a)(x) if (A) and the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) above shall be subject to such either (1) the Company has requested and been granted from the Commission confidential treatment as of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts sought in a court of competent jurisdiction or by another Governmental Authority, give notice to cause all such Registrable Shares the Company and allow the Company, at its expense, to be listed on each primary securities exchange (if any) on which securities undertake appropriate action seeking to prevent disclosure of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be soldRecords deemed confidential;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after as promptly as practicable notify in writing the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder Selling Shareholders and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by this Section 5.07 4.6(a)(viii) cease to be true and correct. For correct in any material respect; and (F) upon the avoidance happening of doubtany event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of any Selling Shareholder, promptly prepare and furnish to such Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(xii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest reasonable practicable date, except that, subject to the requirements of Section 4.6(a)(v), the provisions Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of clauses this clause (vii)xii) be obligated to be so qualified, (viiiB) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xiii) cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (xiwhich shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of this Section 5.07(asuch registration statement a supply of such certificates;
(xiv) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number cooperate with each seller of Registrable Shares to be sold Securities and each underwriter or agent participating in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution disposition of such securities as the Company may from time to time reasonably request in writing Registrable Securities and their respective counsel in connection with such registration.any filings required to be made with FINRA; and
(cxv) Each Stockholder agrees by having its Shares treated have appropriate officers of the Company prepare and make presentations at a reasonable number of “road shows” and before analysts and rating agencies, as Registrable Shares hereunder thatthe case may be, upon being advised in writing and other information meetings reasonably organized by the Company underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its commercially reasonable efforts to cooperate as reasonably requested by the Selling Shareholders and the underwriters in the offering, marketing or selling of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Securities; provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu scheduling of any supplement to a Prospectus, such “road shows” and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, other meetings shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.undu
Appears in 5 contracts
Sources: Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Amerisourcebergen Corp)
Registration Procedures. (a) Whenever It shall be a Stockholder requests or provides notification condition precedent to the obligations of the Company of joining in a request that and any Registrable Shares be registered underwriter or underwriters to take any action pursuant to this Article VV that the Shareholders requesting inclusion in any Piggyback Registration or Demand Registration (a "Registration") shall furnish to the Company such information regarding them, the Registrable Securities held by them, the intended method of disposition of such Registrable Securities, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article V as the Company shall reasonably request and as shall be required in connection with the action to be taken by the Company. With respect to any Registration which includes Registrable Securities held by a Shareholder, the Company shall use reasonable best efforts will, subject to effect, as soon as practical as provided in this Article V, the registration Sections 5.01 and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein5.02 promptly:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC Commission a Registration Statement with respect registration statement on the appropriate form prescribed by the Commission and use its best efforts to such Registrable Shares and cause such Registration Statement registration statement to become effective (unless it is automatically as soon as practicable thereafter; provided that the Company shall not be obligated to maintain such registration effective upon filing), provided, however, for a period longer than the Effectiveness Period; provided further that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicable, including documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationafter the initial filing of the registration statement, the Company shall will furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel registration statement and the managing underwriter(s)underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed filed, including documents incorporated by reference in the Prospectus and, if required by such holders, the exhibits incorporated by reference, at least three (including exhibits 3) business days prior thereto), which documents will be subject to the reasonable review and comment of such counsel, holders and underwriters. Holders will have the opportunity to object to any information pertaining to such other documents holders that is contained therein and the Company will make the corrections reasonably requested by such counselholders with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; provided, including any comment letter from however, that the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall will not file any such Registration Statement registration statement or Prospectus, amendment thereto or any amendments prospectus or supplements any supplement thereto (including such or any documents that, upon filing, would required to be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration therein to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) registration statement or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare Prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such Registration Statement registration statement and the Prospectus used in connection therewith any documents required to be incorporated by reference therein as may be necessary to keep the registration statement effective for a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply with the applicable requirements provisions of the Securities 1933 Act and applicable to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act it with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement registration statement during such the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statementregistration statement or supplement to the prospectus;
(iiic) use reasonable best efforts Furnish to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliversuch Shareholder, without charge, such number of conformed copies of the preliminary and final Prospectus registration statement and any supplement thereto post-effective amendment thereto, as each selling Stockholder such Shareholder may reasonably request, and such number of copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein as the Shareholder or underwriter or underwriters, if any, may request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered securities being sold by such Registration Statement in conformity with the requirements of the Securities Act;
Shareholder (v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided it being understood that the Company will not be required consents to (A) qualify generally to do business the use of the prospectus and any amendment or supplement thereto by the Shareholder covered by the registration statement and the underwriter or underwriters, if any, in connection with the offering and sale of the securities covered by the prospectus or any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction amendments or (C) consent to general service of process in any such jurisdictionsupplements thereto);
(vid) notify each selling Stockholder and each distributor of Notify such Registrable Shares identified by such StockholderShareholder, at any time when a Prospectus prospectus relating thereto would be is required under the Securities Act to be delivered by such distributorunder the 1933 Act, when the Company becomes aware of the occurrence happening of any event as a result of which the Prospectus prospectus included in such Registration Statement registration statement (as then in effect) contains an any untrue statement of material fact or omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the investors of such securities, such prospectus will not contain any untrue statement of a material fact or omits omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viie) in In the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registrationunderwritten offering, enter into an underwriting agreement containing such provisions customary agreements (including provisions for indemnification, lockups, opinions of counsel underwriting agreements in customary form) and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making make members of senior management of the Company available at reasonable times and places on a basis reasonably requested by the underwriters to participate in, "road show" and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities) and cause to be delivered to the underwriters reasonable opinions of counsel to the Company in “road-shows” customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;
(f) Make available, for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to a registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent that the managing underwriter determines are necessary to effect be reviewed by such person in connection with the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders preparation of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestedregistration statement;
(viiig) If requested, cause to be delivered, immediately prior to the effectiveness of the registration statement (and, in the case of an Underwritten Offering in which each selling Stockholder participates underwritten offering, at the time of delivery of any Registrable Securities sold pursuant to a Demand Registrationthereto), a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause letters from the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and 's independent certified public accountants addressed to each selling holder of Registrable Shares Shareholder (unless such selling Shareholder does not provide to such accountants shall be prohibited from so addressing such letters the appropriate representation letter required by applicable standards of rules governing the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)each underwriter, if any, and counsels to stating that such accountants are independent public accountants within the selling holders meaning of the Registrable Shares) to 1933 Act and the applicable rules and regulations adopted by the Commission thereunder, and otherwise in customary form and covering such underwriters financial and each selling holder accounting matters as are customarily covered by letters of Registrable Shares the independent certified public accountants delivered in connection therewithwith primary or secondary underwritten public offerings, covering as the matters customarily covered in opinions requested in underwritten offerings and such other matters as case may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsbe;
(ixh) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide Provide a transfer agent and registrar for all such Registrable Shares Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be soldregistration statement;
(xii) make Use its best efforts to cause all securities included in such registration statement to be listed, by the date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or other market on which the Common Stock is then listed or proposed to be listed by the Company, if any;
(j) Make generally available to Stockholders a consolidated its security holders an earnings statement (statement, which need not be audited, satisfying the provisions of Section 11(a) for a period of 12 months beginning after the effective date of the Registration Statement 1933 Act as soon as reasonably practicable after the end of such periodthe twelve (12)-month period beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the registration statement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; andcover said twelve (12)-month period;
(xiik) After the filing of a registration statement, (i) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request Shareholder holding Registrable Securities covered by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC registration statement of any stop order suspending issued or, to the effectiveness of Company's knowledge, threatened by the Registration Statement;
(4) Commission and of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or blue sky laws of any jurisdictionjurisdiction and (ii) take all reasonable actions to obtain the withdrawal of any order suspending the effectiveness of the registration statement or the qualification of any Registrable Securities at the earliest possible moment;
(l) Subject to the time limitations specified in paragraph (b) above, if requested by the managing underwriter or underwriters or such Shareholder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Shareholder reasonably requests to be included therein, including, without limitation, with respect to the number of shares being sold by the Shareholder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any term of the underwritten offering of the securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(m) As promptly as practicable after filing with the Commission of any document which is incorporated by reference into a registration statement, deliver a copy of such document to such Shareholder;
(n) On or prior to the date on which the registration statement is declared effective, use its best efforts to register or qualify, and cooperate with such Shareholder, the underwriter or underwriters, if any, and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as the Shareholder or managing underwriter or underwriters, if any, requests in writing, to use its best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Securities covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(o) Cooperate with such Shareholder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, may request; and
(5p) Use its best efforts to cause the securities covered by the registration statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies within the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if at any time any, to consummate the disposition of such Registrable Securities. At all times after an Initial Public Offering, the Company has reason shall file all reports required to believe that be filed by it under the representations 1933 Act and warranties the 1934 Act and the rules and regulations adopted by the Commission thereunder, and take such further action as any Shareholders may reasonably request, all to the extent required to enable such Shareholders to be eligible to sell Registrable Securities pursuant to Rule 144 (or any similar rule then in effect). The Shareholders, upon receipt of any notice from the Company of the Company contained happening of any event of the kind described in any agreement subsection (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xid) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that5.03, upon being advised in writing by the Company will forthwith discontinue disposition of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 securities until the Shareholders' receipt of the Exchange Actcopies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 5.03 or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus prospectus may be resumed resumed, and is furnished with a supplemented has received copies of any additional or amended Prospectus as contemplated supplemental filings which are incorporated by Section 5.07(a)(vi)reference in the prospectus, and, if so directed by the Company, each Stockholder Shareholder will, or will deliver request the managing underwriter or underwriters, if any, to, deliver, to the Company (at the Company's expense) all copies, other than permanent file copies then in each Stockholder’s such Shareholder's possession, of the Prospectus prospectus covering such Registrable Shares securities current at the time of receipt of such notice. In the event the Company shall give any such notice, provided, however, that the time periods under mentioned in subsections (a), (b) and (n) of this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained Section 5.03 shall automatically be extended by the amount number of time a Stockholder is required to discontinue disposition days during the period from and including any date of the giving of such securities.
notice to and including the date when each seller of securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by subsection (d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this AgreementSection 5.03 hereof or the Advice.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 5 contracts
Sources: Shareholder Agreement (Credit Suisse/), Shareholders Agreement (Credit Suisse First Boston/), Shareholder Agreement (Heartland Industrial Partners L P)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required by the provisions of joining in a request that any Registrable Shares be registered pursuant this Agreement to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided hereinpossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 4.04(a) below), in connection with the Registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Shares Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (unless it is automatically effective upon filing), i) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (ii) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration statement (provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or state “blue sky” laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany free writing prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders of Holders participating in the Registrable Shares covered planned offering (selected by such Registration Statement, their the Majority Participating Holders) and to one counsel and for the managing underwriter(s)Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counselcounsel (provided that the Company shall be under no obligation to make any changes suggested by the Holders), and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements free writing prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Majority Participating Holders or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement continuously effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, set forth in Section 4.04(a) and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement (and, in connection with any shelf registration statement, file one or more prospectus supplements covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) use reasonable best efforts to obtain in the withdrawal event of any order suspending underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the effectiveness Manager of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statessuch offering;
(ivd) deliverfurnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each selling Stockholder may reasonably request free writing prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ve) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or state “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably requests request in writing, and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect in such jurisdictions for as so long as such registration statement remains in effect), except that in no event shall the applicable Registration Statement may Company be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (e), be required to qualify but for this subparagraph (v)be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xiif) promptly notify each selling Stockholder Participating Holder and the each managing underwriters of any Underwritten Offeringunderwriter, if any:
: (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement or related thereto, any post-effective amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for any additional information regarding such Stockholder;
information; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings for that purpose; (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky sky” laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and
(5v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct. For correct in all material respects; and, if the avoidance notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of doubtcopies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(g) comply (and continue to comply) with all applicable rules and regulations of the SEC (including maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 45 days, or 90 days if it is a fiscal year, after the end of such 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158 thereunder;
(viih) (i)(A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (viiiB) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including all corporate governance requirements;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(j) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (xiit being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(k) of this Section 5.07(ause its reasonable best efforts (i) shall apply only to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in respect of an Underwritten Offering such registration statement, in each case, in customary form and only if (based on market prices at the time the offering is requested covering such matters as are customarily covered by such Stockholderopinions and comfort letters (including, in the case of such comfort letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the number of Registrable Shares dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to be sold the underwriters, if any, and to the Majority Participating Holders, and (ii) furnish to each Holder participating in the offering would reasonably be expected and to yield gross proceeds (prior to deducting underwriting discounts each underwriter, if any, a copy of such opinion and commission and offering expenses) letter addressed to such Stockholder of at least the Minimum Amount.underwriter;
(bl) The Company may require deliver promptly to counsel for each selling Stockholder Participating Holder and to each distributor managing underwriter, if any, copies of Registrable Shares as all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to which any registration is being effected to furnish discussions with the SEC or its staff with respect to the Company information regarding such Person and the distribution registration statement, and, upon receipt of such securities confidentiality agreements as the Company may from time reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to time be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably request in writing requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration.registration statement;
(cm) Each Stockholder agrees by having use its Shares treated as Registrable Shares hereunder that, upon being advised in writing by reasonable best efforts to obtain the Company prompt withdrawal of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that order suspending the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount registration statement, or the prompt lifting of time a Stockholder is required to discontinue disposition any suspension of such securities.the qualification of any of the Registrable Securities for sale in any jurisdiction;
(dn) The Company may prepare provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(o) use its best efforts to make available its employees and deliver an issuer free-writing prospectus personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (as such term is defined in Rule 405 under taking into account the Securities Actneeds of the Company’s businesses and the requirements of the marketing process) in lieu marketing the Registrable Securities in any underwritten offering;
(p) prior to the filing of any supplement document which is to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of be incorporated by reference into the Company to file a registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any amendment or supplement thereto or to cause any free writing prospectus, provide copies of such document to become counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or remain effective or usable within or underwriters may reasonably request;
(q) furnish to counsel for any particular period of time as provided in Section 5.02each Participating Holder and to each managing underwriter, Section 5.04 or Section 5.07 or otherwise in this Article Vwithout charge, due to reasons that are not reasonably within its control, or due to any refusal at least one signed copy of the SEC to permit a registration statement and any post-effective amendments or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.any free writing prospectus utilized in connection therewith;
(fr) It is further understood cooperate with the Participating Holders and agreed that the Company shall managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not have bearing any obligations under this Section 5.07 restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed least three Business Days prior to any sale of Registrable Securities to the Registration Termination Dateunderwriters or, if not an underwritten offering, in which event accordance with the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement instructions of the offering).Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(gs) Notwithstanding anything to the contrary in this Article Vcooperate with any due diligence investigation by any Manager, the Company shall not be required to file a Registration Statement underwriter or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date Participating Holder and make available such documents and records of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required its Subsidiaries that they reasonably request (which, in the case of the Participating Holder, may be subject to achieve effectiveness the execution by the Participating Holder of such Registration Statement.a customary confid
Appears in 4 contracts
Sources: Stockholders Agreement (Cellectis S.A.), Stockholders Agreement (Calyxt, Inc.), Stockholders Agreement (Calyxt, Inc.)
Registration Procedures. In connection with any registration of any Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 and 2.3, the Company will as expeditiously as possible:
(a) Whenever a Stockholder prepare and (except as otherwise provided in Section 2.1, within 60 days after the end of the period within which requests or provides notification for registration may be given to the Company of joining or in a request that any Registrable Shares be registered pursuant event as soon thereafter as practicable) file with the Commission the requisite registration statement to this Article V, the Company shall effect such registration and thereafter use reasonable its best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement registration statement to become effective (unless it is automatically effective upon filing), effective; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided further, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement reference) required to be filed pursuant to a request for a Demand Registrationhereunder, the Company shall furnish or otherwise make available furnish, without charge, to the holders of the Registrable Shares Securities covered by such Registration Statementregistration statement, their counsel and the managing underwriter(s)underwriters, if any, copies of any such registration statement, prospectus, amendment or supplement, and of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselholders, their counsel and such underwriters, if any, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or registration statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during registration statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the intended methods of disposition distribution set forth in such Registration Statementregistration statement which shall be to the reasonable satisfaction of the holders of Registrable Securities covered by such registration statement;
(iiic) use reasonable best efforts furnish to obtain the withdrawal each holder of any order suspending the effectiveness Registrable Securities covered by such registration statement, such number of any Registration Statement, or the lifting conformed copies of any suspension such registration statement and of the qualification or exemption from qualification of any Registrable Shares for sale each such amendment and supplement thereto (in any jurisdiction in the United States;
(iv) deliver, without chargeeach case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate summary prospectus) and any other prospectus filed under Rule 424 under the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such holder may reasonably request;
(vd) (i) use reasonable its best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Shares registration statement under such other securities or blue sky laws of such U.S. jurisdictions states of the United States of America where an exemption is not available and as each selling Stockholder the holders of Registrable Securities covered by such registration statement shall reasonably requests and continue request, (ii) keep such registration or qualification in effect for so long as such registration statement remains in effect, and (iii) take any other action which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the securities to be sold by such holders, except that the Company shall not for as long as the applicable Registration Statement may any such purpose be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph subdivision (v), (Bd) subject itself be obligated to taxation in any such jurisdiction be so qualified or (C) to consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to the Company and counsel to the holders of Registrable Securities covered by such registration statement to enable such holders to consummate the disposition of such Registrable Securities;
(f) use its best efforts to furnish to each such holder a signed counterpart of
(i) an opinion of counsel for the Company which can and shall be reasonably satisfactory to the holders of a majority of the Registrable Securities to be sold, and
(ii) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated);
(vii) notify in writing each selling Stockholder and each distributor holder of such Registrable Shares identified by such Stockholder, Securities at any time when a Prospectus prospectus relating thereto would to Registrable Securities covered by such registration statement is required to be required delivered under the Securities Act to be delivered by such distributorAct, of (A) upon discovery that, or upon the occurrence happening of any event as a result of which which, the Prospectus prospectus included in such Registration Statement contains registration statement, as then in effect, includes an untrue statement of a material fact or omits a to state any material fact required to be stated therein or necessary to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading, and, and at the request of any such Stockholder, the Company shall use holder promptly prepare and furnish to it a reasonable best efforts to prepare, as soon as practical, number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter delivered to any prospective the purchasers of such Registrable Sharessecurities, such Prospectus prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC Commission or any other Government Entity Federal or state governmental authority for amendments or supplements to the Registration Statement a registration statement or the Prospectus related prospectus covering Registrable Securities or for any additional information regarding such Stockholder;
relating thereto, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of a registration statement covering Registrable Securities or the Registration Statement;
initiation of any proceeding for that purpose, or (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale under in any jurisdiction, or the applicable securities initiation or blue sky laws threatening of any proceeding for such purpose and (ii) notify each holder of Registrable Securities covered by such registration statement when each registration statement or any amendment thereto has been filed with the Commission and when each registration statement or any post-effective amendment thereto has become effective;
(h) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(i) otherwise use it best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, and promptly furnish to each such holder of Registrable Securities covered by the registration statement a copy of any amendment or supplement to such registration statement or prospectus;
(j) permit any holder of Registrable Securities which might be deemed, in the sole and exclusive judgment of such holder, to be an underwriter or a controlling person of the Company to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(k) enter into customary agreements (including an underwriting agreement, if such proposed registration is to be an underwritten offering, containing representations and warranties, conditions to closing and indemnification and contribution obligations in customary form), use its best efforts to obtain any necessary consents, including without limitation any necessary consents of the Company's lenders, in connection with any proposed registration and sale of Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration;
(m) use its best efforts to (i) list all Common Stock covered by such registration statement on any national securities exchange on which Registrable Securities of the same class and, if applicable, series, covered by such registration statement are then listed, or (ii) seek the authority for such Common Stock to be quoted on the NASDAQ or the National Market System of NASDAQ if the securities so qualify; and
(5n) if at any time take such other actions as are reasonably required in order to expedite or facilitate the Company has reason to believe that the representations and warranties disposition of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correctsuch Registrable Securities. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor holder of Registrable Shares Securities as to which any registration is being effected to furnish to the Company such information regarding such Person holder and the distribution of such securities as the Company may from time to time reasonably request in writing in connection writing. However, no holders of Registrable Securities shall be required to make any representations or warranties to or agreements with the Company or any underwriter other than customary representations, warranties or agreements regarding such registration.
(c) holder, such holder's Registrable Securities and such holder's intended method of distribution and any other representation required by law. Each Stockholder holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any written notice from the Company of the occurrence happening of an any event of the kind described in subdivision (g)(i) of this Section 2.5, such holder will forthwith discontinue such holder's disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior the registration statement relating to such time and that complies with Rule 10b5-1 Registrable Securities until such holder's receipt of the Exchange Act) until it is advised in writing by the Company that the use copies of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as prospectus contemplated by subdivision (g)(i) of this Section 5.07(a)(vi), 2.5 and, if so directed by the Company, each Stockholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in each Stockholder’s possession, such holder's possession of the Prospectus covering prospectus relating to such Registrable Shares Securities current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 4 contracts
Sources: Registration Rights Agreement (Darling International Inc), Registration Rights Agreement (Darling International Inc), Registration Rights Agreement (Darling International Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered Securities under the Securities Act and in connection with any distribution of Registered Securities pursuant thereto as provided in this Agreement (including any sale referred to this Article Vin any Take-Down Notice), the Company shall use reasonable best efforts to effectas promptly as reasonably practicable, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, Agreement:
(i) use reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Exhibit A; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice, the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriter(s), and such other documents reasonably requested by any such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered underwritten offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementthis Exhibit A;
(iii) use reasonable best efforts if requested by the lead managing underwriter(s), promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to obtain permit the withdrawal intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any order suspending the effectiveness of any Registration Statementactions under this Section 4(a)(iii) that are not, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesopinion of counsel for the Company, in compliance with applicable law;
(iv) deliverfurnish to the Selling Holders and each underwriter, without chargeif any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders and underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holders;
(v) use reasonable best efforts to register or qualify cause such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required Securities to be kept effective under this Agreement (provided that listed on each securities exchange on which similar securities issued by the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)are then listed;
(vi) notify each selling Stockholder use reasonable efforts to provide and each distributor cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(vii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to such Stockholder, Registration Statement or the prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(viii) use reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, and, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the request of such Stockholderearliest reasonable practicable date, except that the Company shall use reasonable best efforts not for any such purpose be required to prepare(A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (ix) be obligated to be so qualified, as soon as practical, (B) subject itself to taxation in any such jurisdiction or (C) file a supplement or amendment general consent to service of process in any such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)jurisdiction;
(viiix) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use Securities and their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm respective counsel in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares filings required to be listed on each primary securities exchange (if any) on which securities of made with the same class issued by the Company are then listedFinancial Industry Regulatory Authority, Inc.;
(x) provide a transfer agent and registrar for all prior to any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the Selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not later than the effective date of such Registration Statement and, be required to (A) qualify generally to do business as a reasonable time before foreign corporation or as a dealer in securities in any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates jurisdiction wherein it would not but for the Registrable Shares requirements of this clause (xi) be obligated to be soldso qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xi) make generally available use reasonable efforts to Stockholders cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a consolidated earnings statement (transferee pursuant to the Registration Statements, which need not certificates or book-entry securities shall be audited) for a period free, to the extent permitted by applicable law, of 12 months beginning all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as soon as reasonably practicable after required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the end transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such period, which earnings statement shall satisfy shares of Registrable Securities under the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunderRegistration Statement; and
(xii) promptly notify agrees with each selling Stockholder and the managing underwriters holder of Registrable Securities that, in connection with any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus Offering or any Prospectus supplement or any post-effective amendment other resale pursuant to the Registration Statement has been filed andin accordance with the terms hereof, with respect it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viiCompany), (viii) including using reasonable efforts to procure customary legal opinions and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountauditor “comfort” letters.
(b) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 4(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 4(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 4(a)(vii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 4 contracts
Sources: Merger Agreement (Splunk Inc), Voting and Support Agreement (Splunk Inc), Merger Agreement (Cisco Systems, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2, Section 3 and Section 4 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective and to remain effective as provided herein (unless it including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is automatically effective upon filingthen eligible to use such registration), ; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Stockholders who are including Registrable Shares covered by Securities in such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file include any information relating to a Stockholder in any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by Stockholder (if such Registration Statement (or their counselincludes Registrable Securities of such Stockholder) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, the inclusion of such filing information is necessary to comply with applicable law;
(ii. No later than the second business day following the effective date of any Registration Statement, the Company shall file with the SEC, in accordance with Rule 424(b)(4) under the Securities Act, the final prospectus to be used in connection with sales pursuant to such Registration Statement. The Company shall use its reasonable best efforts to prepare confirm that (i) no Registration Statement or Prospectus (nor any amendment or supplement to any Registration Statement or Prospectus) shall, upon filing with the SEC, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make any statements therein (in the case any Prospectus or any amendment or supplement thereto, in light of the circumstances under which they were made) not misleading and (ii) no issuer free writing prospectus relating to any Registration Statement shall include any information that conflicts with the information in such Registration Statement.
(b) Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement;, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that makes any statement made in 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 United States;case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ivd) deliver, without charge, such number Use its reasonable best efforts to avoid the issuance of copies any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the preliminary and final qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, or, if issued, to obtain the withdrawal or lifting of any such order or suspension as promptly as practicable.
(e) If requested by the managing underwriters, if any, or any of the holders of any Registrable Securities included in a Registration Statement, promptly include in a Prospectus and any supplement thereto or post-effective amendment such information as each selling Stockholder the managing underwriters, if any, or such holder may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities (including information to reflect any transfer by such holder of any Registrable Securities, or of any securities convertible into (or exercisable or exchangeable for) any Registrable Securities, to any other Person that is (or in connection with such transfer, pursuant to Section 12(c), becomes) a Stockholder and to permit the sale by such transferee of such Registrable Securities pursuant to such Registration Statement) and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to each selling holder of Registrable Securities, and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) or issuance of Registrable Securities in book-entry form (not being subject to any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within 10 business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of any selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable such selling holder or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 6(c)(ii), Section 6(c)(iii), Section 6(c)(iv) or Section 6(c)(v) above, prepare as promptly as practicable a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use reasonable best efforts Registration Statement.
(n) Cause all shares of Registrable Securities covered by such Registration Statement to prepare, as soon as practical, a supplement or amendment be authorized to such Prospectus so that, as thereafter delivered to be listed on any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state national securities exchange if any material fact necessary to make the statements therein, in light other shares of the circumstances under which they were madeparticular class of Registrable Securities are at that time, not misleading (which notice shall notify or will be immediately following the selling Stockholders only of the occurrence of offering, listed on such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);exchange.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters holders of such offering Registrable Securities and one law firm and accounting firm acting for such managing the underwriters, pertinent corporate documents if any, opinions and financial and other records “negative assurance letters” of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent registered public accounting firm of the same class issued Company (and, if necessary, any other independent registered public accounting firms of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the addressed to each selling holder of Registrable Shares to Securities (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, (1iv) when the Registration Statement, any pre-effective amendmentif an underwriting agreement is entered into, the Prospectus or any Prospectus supplement or any post-effective amendment same shall contain indemnification provisions and procedures substantially to the Registration Statement has been filed and, effect set forth in Section 8 hereof with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request all parties to be indemnified pursuant to said Section except as otherwise agreed by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) Stockholders and (xiv) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering deliver such documents and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares certificates as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company holders of a majority of the Registrable Securities being sold, their counsel and required to achieve effectiveness of such Registration Statement.
Appears in 4 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Adeptus Health Inc.), Registration Rights Agreement (Adeptus Health Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company of joining in a request that any Registrable Shares be registered pursuant to this Article VCompany’s Registration obligations under Sections 2.01, 2.02 and 2.03, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration effect such Registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereofdistribution thereof as expeditiously as reasonably practicable, and, pursuant thereto, and in connection therewith the Company shall, as soon as practical as provided herein:
(i) subject to prepare the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a required Registration Statement with respect including all exhibits and financial statements required under the Securities Act to such Registrable Shares be filed therewith, and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and to Participating Holders, copies of all documents prepared to be filed, which documents shall be subject to the review of such underwriters and such Holders and their respective counsel; and (y) except in the case of a Registration under Section 2.03, not file any Registration Statement or Prospectus or amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Sponsor or the managing underwriter(s)underwriters, if any, shall reasonably objectobject and (z) make such changes in such documents concerning the Holders prior to the filing thereof as such Holders, in writing, on a timely basis, unless, in the opinion of the Company’s or their counsel, such filing is necessary to comply with applicable lawmay reasonably request;
(ii) use reasonable best efforts to prepare and file with the SEC such pre- and post-effective amendments and supplements to such Registration Statement and supplements to the Prospectus used in connection therewith as may be (x) reasonably requested by the Sponsor, (y) reasonably requested by any other Participating Holder (to the extent such request relates to information relating to such Holder), or (z) necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period of time required hereunderby this Agreement, but no longer than is necessary to complete the distribution and comply with provisions of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act securities laws with respect to the sale or other disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event Participating Holders and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the or underwriters, if any, with respect to the business and (if requested) confirm such advice in writing and provide copies of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and relevant documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after notice thereof is received by the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
Company (xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1a) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the applicable Registration Statement or any post-effective amendmentamendment thereto has been filed or becomes effective, and when the same applicable Prospectus or any amendment or supplement to such Prospectus has become effective;
been filed, (2b) of any written comments by the SEC or any request by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the such Registration Statement or the such Prospectus or for any additional information regarding such Stockholder;
information, (3c) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the Registration Statement;
SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (4d) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (e) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any Registrable Shares jurisdiction or the initiation or threatening of any proceeding for sale under such purpose;
(iv) promptly notify the Participating Holders and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable securities Registration Statement or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained Prospectus included in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not misleading, when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement, or, if for any other than those pursuant reason it shall be necessary during such time period to a plan that is amend or supplement such Registration Statement or Prospectus in effect prior order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the Participating Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such time and that complies with Rule 10b5-1 of Registration Statement or Prospectus which shall correct such misstatement or omission or effect such compliance;
(v) to the Exchange Act) until it is advised in writing by extent the Company that is eligible under the use relevant provisions of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 430B under the Securities Act, if the Company files any Shelf Registration Statement, the Company shall include in such Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in lieu order to ensure that the Holders may be added to such Shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;
(vi) use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any supplement to a preliminary or final Prospectus, and references herein to any “supplement” to ;
(vii) promptly incorporate in a Prospectus shall include any supplement, Issuer Free Writing Prospectus or post-effective amendment such issuer freeinformation as the managing underwriter or underwriters and the Sponsor agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or post-writing prospectus.effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment;
(eviii) It is understood furnish to each Participating Holder and agreed that any failure each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(ix) deliver to each Participating Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to file a registration statement the use of such Prospectus or any amendment or supplement thereto or to cause any by such document to become or remain effective or usable within or for any particular period of time as provided Holder and the underwriters, if any, in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal connection with the offering and sale of the SEC Registrable Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such Holder or underwriter may reasonably request in order to permit a registration statement facilitate the disposition of the Registrable Securities by such Holder or prospectus underwriter, it being understood that the Company consents to become the use of such Prospectus or remain effective any amendment or supplement thereto by such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto;
(x) on or prior to be used because of unresolved SEC comments thereon (or the date on any documents incorporated therein by reference) despite which the Company’s good faith and applicable Registration Statement is declared effective, use its reasonable best efforts to resolve those comments register or overcome such failurequalify, shall not be a breach of this Agreement.
(f) It is further understood and agreed that cooperate with the Company shall not have any obligations under this Section 5.07 at any time on Participating Holders, the managing underwriter or after the Registration Termination Dateunderwriters, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Dateif any, and their respective counsel, in which event connection with the Company’s obligations registration or qualification of such Registrable Securities for offer and sale under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement securities or “Blue Sky” laws of each state and other jurisdiction of the offeringUnited States as any Participating Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 2.01(d) or Section 2.02(b).
(g) Notwithstanding anything to the contrary in this Article V, whichever is applicable, provided that the Company shall not be required to file a qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(xi) cooperate with the Participating Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters;
(xii) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or include approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Shares Securities;
(xiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and if applicable, provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior form eligible for deposit with The Depository Trust Company;
(xiv) make such representations and warranties to the anticipated filing Participating Holders and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in public offerings then being undertaken;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Sponsor or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;
(xvi) obtain for delivery to the Participating Holders and to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company (including, if necessary, local counsel) dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance;
(xvii) in the case of an Underwritten Offering, (a) obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Participating Holders, a cold comfort letter from the Company’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement and (b) obtain the required consents from the Company’s independent certified public accountants and, if applicable, independent auditors to include the accountants’ or auditors’ report, as applicable, relating to the specified financial statements in the Registration Statement and to be named as an expert in the Registration Statement;
(xviii) cooperate with each Participating Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(xix) use its reasonable best efforts to comply with all applicable securities laws and 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 and the rules and regulations promulgated thereunder;
(xx) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xxi) use its reasonable best efforts to cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted;
(xxii) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Sponsor, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by the Sponsor or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.05(a)(xxii) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that the Company determines in good faith to be confidential, and of which determination such Stockholder Person is notified, unless (v) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (w) disclosure of such information, in the opinion of counsel to such Person, is otherwise required by law, (x) such information is or becomes publicly known other than through a breach of this or any other agreement of which such Person has knowledge, (y) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person; provided that in the case of clauses (v) and (w), the person seeking to make disclosure of such information, to the extent reasonably practicable and permitted by law, provides the Company prior notice and a draft of the proposed disclosure and uses reasonable best efforts to reflect the Company’s comments on such disclosure.
(xxiii) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the Company managing underwriter or underwriters in any such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;
(xxiv) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
(xxv) take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any Registration complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to achieve effectiveness the extent required thereby and, when taken together with the related Prospectus, will not contain any untrue statement of such Registration Statement.a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they
Appears in 4 contracts
Sources: Registration Rights Agreement (IBEX LTD), Registration Rights Agreement (IBEX LTD), Registration Rights Agreement (IBEX Holdings LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, make all required filings with FINRA and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to (including any free writing prospectuses under Rule 433 under the extent reasonably practicable, Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Demand Party, the Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (Statement, or their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements to such each Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered by such period Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or the managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the 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 the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement (and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an Underwritten Offering in underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which each selling Stockholder participates pursuant the Common Stock is then listed, prior to a Demand Registrationthe effectiveness of such Registration Statement (or, a Piggyback Registration if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or an S-3 Shelf RegistrationNASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by selling Holders and the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any), and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares addressed to each selling Holder (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (1iv) when the Registration Statement, any pre-effective amendmentif an underwriting agreement is entered into, the Prospectus or any Prospectus supplement or any post-effective amendment same shall contain indemnification provisions and procedures substantially to the Registration Statement has been filed and, effect set forth in Section 5 hereof with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease all parties to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event indemnified pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing 5 except as otherwise agreed by the Company that the use of the Prospectus Holders and (v) deliver such documents and certificates as may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness Demand Party, the Holders of such Registration Statement.a majorit
Appears in 4 contracts
Sources: Registration Rights Agreement (Box Inc), Investment Agreement (Box Inc), Registration Rights Agreement (Coty Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 or Section 4, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as reasonably practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, make all required filings by the Corporation with FINRA and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as reasonably practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoany documents incorporated by reference therein, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company ; and the Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or Requisite Participating Holders, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of counsel for the Company’s counselCorporation, such filing is necessary to comply with applicable lawlaw or regulation;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments, post-effective amendments and supplements to such each Registration Statement and the Prospectus used in connection therewith to the extent not publicly available, and such Exchange Act reports as may be reasonably requested by the Holders or as necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; provided, that if the Corporation prepares any such amendments, post-effective amendments or supplements to a Registration Statement or Prospectus or any such Exchange Act report, the Holders and their respective counsel shall have a reasonable period of time prior to the filing thereof in which to review and comment thereon, which period shall, in any event, be no less than two (2) Business Days;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any Proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus, any amendment or supplement thereto, or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only Holders of the occurrence of such an event and shall not provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the Requisite Participating Holders in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit or facilitate the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Corporation, in compliance with applicable law or regulation;
(f) furnish or make available to each selling Holder, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or underwriter); provided, that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided, that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto in accordance with this Agreement;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, or (ii) take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) Business Days prior to the settlement date with respect to any sale of Registrable Securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary or advisable to enable the seller or sellers of such Registrable Securities or 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 which case the Corporation will cooperate in all reasonable respects with the granting of such approvals;
(k) promptly upon the occurrence of, and its knowledge of, any event contemplated by Sections 6(c)(ii) or (vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus responds to such comments or requests for amendments, 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 and as such Registration Statement responds to such comments or request for amendments, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed or authorized for quotation or trading on a national securities exchange or automated quotation system if shares of the particular class of Registrable Securities are at that time listed, quoted or traded on such exchange or automated quotation system, as the case may be, prior to the effectiveness of such Registration Statement;
(o) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registrationconnection with any underwritten offering, enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Requisite Participating Holders in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of Registrable Securities in such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the underwritten offering), adding information requested by the managing underwriters to the Prospectus, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling Holders of such offering Registrable Securities and one law firm and accounting firm acting the underwriters for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such underwritten offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence customary opinions and have them provide customary comfort Rule 10b-5 letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and its opinions and letters (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders Holders of the Registrable Shares) Securities), addressed to such underwriters each selling Holder and each selling holder of Registrable Shares in connection therewiththe underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any Subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares addressed to each selling Holder (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (1iv) when the Registration Statement, any pre-effective amendmentif an underwriting agreement is entered into, the Prospectus or any Prospectus supplement or any post-effective amendment same shall contain indemnification and/or contribution provisions and procedures substantially to the Registration Statement has been filed and, effect set forth in Section 8 with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease all parties to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event indemnified pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.said Sectio
Appears in 4 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement, Registration Rights Agreement (Laureate Education, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3.1, including the Shelf Registration Statement and a Piggyback Registration, the Company shall use reasonable best efforts as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration statement to effect, as soon as practical as provided in this Article V, the effect such registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions terms of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), III; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of Investor and the Registrable Other Holders (if they are including Company Common Shares covered by in such Registration Statementregistration) (“Selling Shareholder”), their its counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with keep such registration statement effective pursuant to the applicable requirements terms of this Article III or necessary to facilitate the disposition of the Registrable Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statementregistration statement and prospectus (including causing the prospectus contained in such registration statement to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act), and comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all securities, including the Shares Registrable Securities, covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain if requested by the withdrawal of any order suspending the effectiveness of any Registration Statementlead managing underwriter(s), if any, or the lifting Investor in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment, such information as the lead managing underwriter(s), if any, and the Investor may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any suspension actions under this Section 3.4(a)(iii) that are not, based on the advice of counsel for the qualification or exemption from qualification of any Registrable Shares for sale Company, in any jurisdiction in the United Statescompliance with Applicable Law;
(iv) deliverfurnish to the Selling Shareholder and each underwriter, without chargeif any, of the securities being sold by the Selling Shareholder such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as the Selling Shareholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by the Selling Shareholder;
(v) use commercially reasonable best efforts to register or qualify or cooperate with the Selling Shareholder, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholder and any underwriter of the securities being sold by the Selling Shareholder shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable the Selling Shareholder and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Selling Shareholder, 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 wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction where it would not otherwise be obligated to do so, but for this clause (v), or (C) file a general consent to general service of process in any such jurisdiction);
(vi) notify use commercially reasonable efforts (including seeking to cure in the Company’s listing or inclusion application any deficiencies cited by the exchange or market) to list or include all Registrable Securities on each selling Stockholder and each distributor of such Registrable Shares identified securities exchange on which similar securities issued by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement are then listed or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)included;
(vii) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the Selling Shareholder to consummate the disposition of such Registrable Securities;
(viii) use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(ix) use commercially reasonable efforts to prepare and file in a timely manner all documents and reports required by the case Exchange Act;
(x) use commercially reasonable efforts to make generally available to its stockholders, as soon as reasonably practicable, earnings statements (which need not be audited) covering at least 12 months that satisfy the provisions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and use commercially reasonable efforts to take all such other customary and reasonable actions as reasonably requested by the Investor in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Investor and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if an underwriting agreement has been entered into, the Company’s officers same shall contain indemnification provisions and employees procedures substantially to supply information the effect set forth in Section 3.9 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Selling Shareholder and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offeringthe Selling Shareholder, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which its counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(sunderwriters(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders extent required thereunder;
(xii) in connection with an Underwritten Offering or otherwise required in connection with the disposition of the Registrable SharesSecurities, use commercially reasonable efforts to obtain for the Selling Shareholder and underwriter(s) to such underwriters and each selling holder (A) opinions of Registrable Shares in connection therewithcounsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel the Selling Shareholder and underwriters; provided, however, that such records and other information provided under clauses (A) underwriters and (B) above shall be subject “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72 or any successor accounting standard thereto, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements and, to the extent required, any other financial statements included or incorporated by reference in such confidential treatment as is customary for underwriters’ due diligence reviewsregistration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(ixxiii) use reasonable best efforts make available for inspection by the Selling Shareholder, any underwriter participating in any disposition pursuant to cause all any registration statement, and any attorney, accountant or other agent or representative retained in connection with such Registrable Shares to be listed on each primary securities exchange offering by the Selling Shareholder or underwriter (if any) on which securities collectively, the “Inspectors”), financial and other records, pertinent corporate documents and instruments of the same class issued Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney, agent or accountant in connection with such registration statement (in each case subject to the Selling Shareholder and/or Inspectors entering into customary confidentiality agreement on terms and conditions reasonably acceptable to the Company as may be reasonably requested by the Company); provided, further, that the Selling Shareholder agrees that it will, upon receipt of a written request to disclose such Records from a court of competent jurisdiction or by another Governmental Authority, give notice to the Company are then listedand allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the Records deemed confidential;
(xxiv) provide a transfer agent and registrar for all such Registrable Shares not later than as promptly as practicable notify in writing the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder Selling Shareholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by this Section 5.07 3.4(a)(xi) cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) correct in any material respect; and (xiF) upon the happening of this Section 5.07(a) shall apply only any event that makes any statement made in such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of an Underwritten Offering any changes in such registration statement, prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and only if (based on market prices that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the time the offering is requested by such Stockholder) the number request of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts any Selling Shareholder, promptly prepare and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus as may be necessary so that, as thereafter delivered to become the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or remain effective or omit to state a material fact required to be used because stated therein or necessary to make the statements therein, in the light of unresolved SEC comments thereon the circumstances under which they were made, not misleading;
(xv) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or on exemption from qualification) of any documents incorporated therein by reference) despite of the Company’s good faith and Registrable Securities for sale in any jurisdiction at the earliest reasonable best efforts to resolve those comments or overcome such failurepracticable date, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Dateexcept that, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior subject to the Registration Termination Date, in which event the Company’s obligations under this requirements of Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering3.4(a)(v).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction wherein it would not be obligated to do so but for the requirements of this clause (xiii) or (C) file a Registration Statement general consent to service of process in any such jurisdiction;
(xvi) cooperate with the Selling Shareholder and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or include Registrable Shares in the Selling Shareholder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a Registration Statement unless it has received from supply of such certificates;
(xvii) cooperate with the Selling Shareholder and each Stockholder underwriter or agent participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior disposition of any Registrable Securities and their respective counsel in connection with any filings required to the anticipated filing date be made with FINRA; and
(xviii) have appropriate officers of the Registration StatementCompany prepare and make presentations at a reasonable number of “road shows” and before analysts and rating agencies, as the case may be, and other information regarding such Stockholder meetings reasonably organized by the underwriters and otherwise use commercially reasonable efforts to cooperate as reasonably requested by the Company Selling Shareholder and required to achieve effectiveness of such Registration Statement.the underwriters in the offering
Appears in 4 contracts
Sources: Shareholder Agreement (NXP Semiconductors N.V.), Shareholder Agreement (NXP Semiconductors N.V.), Shareholder Agreements (NXP Semiconductors N.V.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 4.1, Section 4.2 or Section 4.3, the Company shall use reasonable best efforts as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration statement to effect, as soon as practical as provided in this Article V, the effect such registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions terms of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), IV; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of the Demand Shareholders which are including Registrable Shares covered by Securities in such Registration Statementregistration (“Selling Shareholders”), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Registrable Shares covered by such Registration Statement (or Requesting Shareholder(s), their counsel) counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawApplicable Law;
(ii) use reasonable best efforts to except in the case of a Shelf Registration Statement, prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article IV, and comply in all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain in the withdrawal case of any order suspending the effectiveness of any a Shelf Registration Statement, or prepare and file with the lifting of any suspension Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the qualification Securities Act with respect to the disposition of the Registrable Securities subject thereto for a period ending on the earlier of (x) thirty-six (36) months after the effective date of such Shelf Registration Statement, (y) the date when all restrictive legends on the Registrable Securities have been removed or exemption from qualification of any (z) the date on which all the Registrable Shares for sale in any jurisdiction in Securities held by the United StatesDemand Shareholders cease to be Registrable Securities;
(iv) deliverif requested by the lead managing underwriter(s), without chargeif any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4.7(a)(iv) that are not, in the opinion of counsel for the Company, in compliance with Applicable Law;
(v) furnish to the Selling Shareholders and each underwriter, if any, of the securities being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholders;
(vvi) use commercially reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholders and any underwriter of the securities being sold by such Selling Shareholders shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable such Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholders, 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 wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)vi) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Company Common Stock) to be listed on each securities exchange on which shares of Company Common Stock are then listed;
(viii) use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, such registration statement;
(ix) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationagreement) in form, lockups, opinions scope and substance as is customary in underwritten offerings of counsel Company Common Stock by the Company and comfort letters), and use its commercially reasonable efforts to take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if any underwriting agreement has been entered into, the Company’s officers same shall contain customary indemnification provisions and employees procedures with respect to supply information all parties to be indemnified pursuant to Section 4.10, except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder holders of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards a majority of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which Registrable Securities being sold, their counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders of the Registrable Sharesextent required thereunder;
(x) to such underwriters and each selling holder of Registrable Shares in connection therewithwith an Underwritten Offering, use commercially reasonable efforts to obtain for the underwriter(s) (A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel underwriters and underwriters(B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney, agent or accountant in connection with such registration statement; provided, however, that such records and other the Company shall not be required to provide any information provided under clauses this Section 4.7(a)(xi) if (A) and the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) above shall be subject to such either (1) the Company has requested and been granted from the Commission confidential treatment as of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts sought in a court of competent jurisdiction or by another Governmental Authority, give notice to cause all such Registrable Shares the Company and allow the Company, at its expense, to be listed on each primary securities exchange (if any) on which securities undertake appropriate action seeking to prevent disclosure of the same class issued by the Company are then listedRecords deemed confidential;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) as promptly as practicable notify each selling Stockholder in writing the Selling Shareholders and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by this Section 5.07 4.7(a)(ix) cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) correct in any material respect; and (xiF) upon the happening of this Section 5.07(a) shall apply only any event that makes any statement made in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares registration statement or related prospectus or any document incorporated or deemed to be sold 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 offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company case of the occurrence registration statement, it will not contain any untrue statement of an event pursuant a material fact or omit to Section 5.07(a)(vi)state any material fact required to be stated therein or necessary to make the statements therein not misleading, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 in the case of the Exchange Act) until prospectus, it is advised will not contain any untrue statement of a material fact or omit to state any material fact necessary in writing by order to make the Company that the use statements therein, in light of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)circumstances under which they were made, not misleading, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time request of receipt any Selling Shareholder, promptly prepare and furnish to such Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus as may be necessary so that, as thereafter delivered to become the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or remain effective or omit to state a material fact required to be used because stated therein or necessary to make the statements therein, in light of unresolved SEC comments thereon the circumstances under which they were made, not misleading;
(xiii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or on exemption from qualification) of any documents incorporated therein by reference) despite of the Company’s good faith and Registrable Securities for sale in any jurisdiction at the earliest reasonable best efforts to resolve those comments or overcome such failurepracticable date, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Dateexcept that, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior subject to the Registration Termination Date, in which event the Company’s obligations under this requirements of Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering4.7(a)(vi).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a Registration Statement general consent to service of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in such Selling Shareholders may request and keep available and make available to the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days Company’s transfer agent prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.registration statement a supply of such certificates;
(xv) cooperate with each seller of Registrable Secu
Appears in 3 contracts
Sources: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to When the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3(a) or Section 4, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible to the extent applicable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its commercially reasonable efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and use its commercially reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support prevent the marketing issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Shares covered by Securities for sale in any jurisdiction at the Registration Statement earliest date reasonably practicable;
(including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information e) if requested by the managing underwriters to in connection with the ProspectusUnderwritten Take-Down, and making such representations and warranties to if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable Shares Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Company may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry positions (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available use its commercially reasonable efforts to Stockholders cause all shares of Registrable Securities covered by such Registration Statement to be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement as soon as reasonably practicable after the end particular class of Registrable Securities are at that time listed on such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment exchange prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) in connection with the Underwritten Take-Down, enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt then outstanding Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities;
(o) in connection with a customary due diligence review relating to the Underwritten Take-Down, make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the “Offering Persons”), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case as reasonably requested by any notification such representative, underwriter, counsel or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the suspension Offering Persons from a source other than the Company when such source, to the knowledge of the qualification Offering Persons, is not bound by any contractual, legal or fiduciary obligation of any Registrable Shares for sale confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use or, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement or Prospectus under the applicable securities or blue sky laws of any jurisdictionthis Agreement); and
(5p) if at cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any time filings required to be made with the Company has reason Financial Industry Regulatory Authority (“FINRA”), including the use of commercially reasonable efforts to believe that the representations and warranties obtain FINRA’s pre-clearance or pre-approval of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true Registration Statement and correctapplicable Prospectus upon filing with the SEC. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor holder of Registrable Shares Securities as to which any registration is being effected to furnish to the Company in writing such information required in connection with such registration regarding such Person seller and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder thatSecurities, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi)including, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Datelimited to, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, updating any information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.contained i
Appears in 3 contracts
Sources: Investor Rights Agreement (Care.com Inc), Investor Rights Agreement (Google Capital 2016, L.P.), Investment Agreement (Care.com Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2.1, Section 2.2 or Section 2.3, the Company shall use reasonable best efforts as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration statement to effect, as soon as practical as provided in this Article V, the effect such registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions terms of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), II; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of the Demand Shareholders which are including Registrable Shares covered by Securities in such Registration Statementregistration (“Selling Shareholders”), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered Securities held by such Registration Statement (or the Selling Shareholders, their counsel) counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawLaw;
(ii) use reasonable best efforts to except in the case of a Shelf Registration Statement, prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article II, and comply in all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain in the withdrawal case of any order suspending the effectiveness of any a Shelf Registration Statement, or prepare and file with the lifting of any suspension Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the qualification or exemption from qualification Securities Act with respect to the disposition of any the Registrable Shares Securities subject thereto for sale in any jurisdiction in a period ending on the United Statesdate on which all the Registrable Securities held by the Demand Shareholders cease to be Registrable Securities;
(iv) deliverif requested by the lead managing underwriter(s), without chargeif any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 2.6(a)(iv) that are not, in the opinion of counsel for the Company, in compliance with Law;
(v) furnish to the Selling Shareholders and each underwriter, if any, of the securities being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act or any successor rule) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act or any successor rule, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholders;
(vvi) use commercially reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholders and any underwriter of the securities being sold by such Selling Shareholders shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable such Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholders, 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 wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)vi) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in use commercially reasonable efforts to cause such Registrable Securities (if such Registrable Securities are shares of Company Common Stock) to be listed on each securities exchange on which shares of Company Common Stock are then listed;
(viii) use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, such registration statement;
(ix) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationagreement) in form, lockups, opinions scope and substance as is customary in underwritten offerings of counsel shares of Company Common Stock by the Company and comfort letters), and use its commercially reasonable efforts to take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if any underwriting agreement has been entered into, the Company’s officers same shall contain customary indemnification provisions and employees procedures with respect to supply information all parties to be indemnified pursuant to Section 2.9, except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder holders of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards a majority of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which Registrable Securities being sold, their counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders of the Registrable Sharesextent required thereunder;
(x) to such underwriters and each selling holder of Registrable Shares in connection therewithwith an Underwritten Offering, use commercially reasonable efforts to obtain for the underwriter(s) (A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel underwriters and underwriters(B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72 (as codified in AS 6101), an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or Representative retained in connection with such offering by such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such Representative, underwriter, attorney, accountant or other agent in connection with such registration statement; provided, however, that such records and other the Company shall not be required to provide any information provided under clauses this Section 2.6(a)(xi) if (A) and the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) above shall be subject to such either (1) the Company has requested and been granted from the Commission confidential treatment as of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts sought in a court of competent jurisdiction or by another Governmental Authority, and it is permitted to cause all such Registrable Shares do so give notice to be listed on each primary securities exchange (if any) on which securities the Company and allow the Company, at its expense, to undertake appropriate action seeking to prevent disclosure of the same class issued by the Company are then listedRecords deemed confidential;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) as promptly as practicable notify each selling Stockholder in writing the Selling Shareholders and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity Governmental Authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 2.6(a)(ix) cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) correct in any material respect; and (xiF) upon the happening of this Section 5.07(a) shall apply only any event that makes any statement made in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares registration statement or related prospectus or any document incorporated or deemed to be sold 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 offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company case of the occurrence registration statement, it will not contain any untrue statement of an event pursuant a material fact or omit to Section 5.07(a)(vi)state any material fact required to be stated therein or necessary to make the statements therein not misleading, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 in the case of the Exchange Act) until prospectus, it is advised will not contain any untrue statement of a material fact or omit to state any material fact necessary in writing by order to make the Company that the use statements therein, in light of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)circumstances under which they were made, not misleading, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time request of receipt any Selling Shareholder, promptly prepare and furnish to such Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus as may be necessary so that, as thereafter delivered to become the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or remain effective or omit to state a material fact required to be used because stated therein or necessary to make the statements therein, in light of unresolved SEC comments thereon the circumstances under which they were made, not misleading;
(xiii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or on exemption from qualification) of any documents incorporated therein by reference) despite of the Company’s good faith and Registrable Securities for sale in any jurisdiction at the earliest reasonable best efforts to resolve those comments or overcome such failurepracticable date, shall not be a breach of this Agreement.
(f) It is further understood and agreed except that the Company shall not have for any obligations such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under this Section 5.07 at applicable Law) representing securities sold under any time on registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or after such Selling Shareholders may request and keep available and make available to the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed Company’s transfer agent prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to effectiveness of such offering until it is so completed (but not more than 60 days after the commencement registration statement a supply of the offering).such certificates;
(gxv) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement cooperate with each seller of Registrable Securities and each underwriter or include Registrable Shares in a Registration Statement unless it has received from each Stockholder agent participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date disposition of the Registration Statement, information regarding such Stockholder reasonably requested by the Company Registrable Securities and their respective counsel in connection with any filings required to achieve effectiveness of such Registration Statement.be made with FIN
Appears in 3 contracts
Sources: Registration Rights Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and(but not including any Form 8-K, to the extent reasonably practicableForm 10-Q, documents proxy statement or other similar filing or amendment thereto that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter relating to such document from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such (but not including any Form 8-K, Form 10-Q, proxy statement or other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement similar filing or Prospectus, or any amendments or supplements amendment thereto (including such documents that, upon filing, that would be incorporated or deemed to be incorporated therein by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(sreference), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed (but not including any Form 8-K, Form 10-Q, proxy statement or other similar filing or amendment thereto that would be incorporated or deemed to be incorporated therein by reference, unless a request for registration pursuant to Section 2.1 or 2.2 has been made), and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any underwriting agreement contemplated by Section 2.3(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to Section 2.4(b), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any Selling Holder or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v)then so qualified, (Bii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (Ciii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.3(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on the Toronto Stock Exchange or another exchange in Canada or elsewhere, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of In connection with an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registrationunderwritten offering, a Piggyback Registration or an S-3 Shelf Registrationif any, enter into an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters)substance as is customary in underwritten offerings, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Sharesconnection therewith, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering Registrable Securities opinions and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records negative assurances of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel counsel, opinions and opinions negative assurance (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions and negative assurances requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters of any Underwritten Offeringunderwriter(s), if any:
, and (1v) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request deliver such customary documents and certificates as may be reasonably requested by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) Holders of a majority of the notification Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the Company by the SEC continued validity of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, pursuant to which the Holders agree to use the following information solely for the purpose of their due diligence review in connection with an offering of securities by the Company, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, each of the type which would be included in a reasonable and customary due diligence review in connection with an offering of securities, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder thatSubject to the provisions of Section 2.7(b) hereof, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct connection with any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Demand Registration Statement (other than those pursuant to a plan that is in effect prior a “fully underwritten marketed offering”, cause its officers to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering without limitation, by participation in which a Stockholder participates has been priced but not completed prior to “road shows”) as reasonably requested by the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to underwriters; provided that such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company officers shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in take any action which would unreasonably interfere with the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.normal b
Appears in 3 contracts
Sources: Registration Rights Agreement (Golden Queen Mining Co LTD), Registration Rights Agreement (Golden Queen Mining Co LTD), Registration Rights Agreement (Golden Queen Mining Co LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company of joining in a request that any Registrable Shares be registered Company’s registration obligations pursuant to this Article VArticles III, IV and V the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and effect such registrations to permit the sale of such Registrable Shares Securities by the Trust in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, shall as soon promptly as practical as provided hereinreasonably practicable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement on an appropriate form under the Securities Act available for the sale of the Registrable Securities by the Trust in accordance with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), the intended method or methods of distribution thereof; provided, however, that the Company shall (i) before filing, furnish to one firm of counsel for the Trust (selected by the Trust in accordance with Section 7.4) and the managing underwriter, if any, within a reasonable period of time (but in any event at least three Business Days) prior to the filing thereof with the SEC to afford to such counsel, the Trust, the managing underwriter and its counsel a reasonable opportunity for review, copies of the Registration Statement or Prospectus or any amendments or supplements thereto andproposed to be filed, and (ii) reflect in each such document, when so filed with the SEC, such written comments as such counsel to the Trust and the managing underwriter may reasonably propose;
(b) furnish, at its expense, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders Trust such number of conformed copies of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each amendment thereto, of the Prospectus included therein and each supplement thereto, and of such other opportunities documents as the Trust reasonably may request in writing from time to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawtime;
(iic) use reasonable best efforts subject to Section 4.2 and Article VI, prepare and file with the SEC such any amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary and any supplements to comply with the Prospectus as may be required or appropriate, in the view of the Company and its counsel, by the rules, regulations or instructions applicable requirements of to the registration form used by the Company or by the Securities Act and to keep such the Registration Statement effective for until the relevant period required hereunder, but no longer than is necessary earlier of (i) such time as all shares of New Common Stock covered by the Registration Statement cease to complete be Registrable Securities and (ii) the distribution termination of the Shares covered by such Required Period (giving effect to any extensions thereof pursuant to Section 4.2(b), Section 6.2 or Section 7.3);
(d) promptly following its actual knowledge thereof (but in any event within two Business Days), notify the Trust and the managing underwriter, in writing, if any:
(i) when a Registration Statement, and to comply with the applicable requirements of the Securities Act Prospectus, Issuer Free Writing Prospectus or any supplement or amendment has been filed and, with respect to the disposition of all the Shares covered by such a Registration Statement during such period in accordance with or any post-effective amendment, when the intended methods same has become effective;
(ii) of disposition set forth in such any request by the SEC or any other governmental authority for amendments or supplements to a Registration Statement, Prospectus or Issuer Free Writing Prospectus or for additional information;
(iii) of the issuance by the SEC or any other governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification or exemption from qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(v) of the occurrence of any event during the period a Registration Statement is effective which makes any statement made in the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement, Prospectus or Issuer Free Writing Prospectus so that such Registration Statement, Prospectus or Issuer Free Writing Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided, however, that no notice by the Company shall be required pursuant to this Section 7.1(d)(v) in the event that the Company either promptly files a Prospectus supplement to update the Prospectus or an appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information that results in such Registration Statement no longer containing any untrue statement of a material fact or omitting to state a material fact necessary to make the statements therein or in light of the circumstances under which they were made, not misleading); and
(vi) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be required by applicable law (in which case the Company shall file the same as soon as practicable after such determination and use its reasonable best efforts to cause the same to become effective as soon as practicable following filing);
(e) use its reasonable best efforts to prevent the issuance of or obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, at the United Statesearliest practicable date or, if any such order or suspension is made effective during any Blackout Period, at the earliest practicable date after the Blackout Period;
(ivf) deliverprior to any public offering of Registrable Securities, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify qualify, or cooperate with the Trust, or counsel retained by the Trust in accordance with Section 7.4, the managing underwriter, if any, and its counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky laws of such U.S. jurisdictions within the United States as each selling Stockholder such counsel for the Trust covered by a shelf Registration Statement or the managing underwriter of an Underwritten Offering of Registrable Securities reasonably requests in writing and continue do such other acts and things as may be reasonably necessary to maintain each such registration or qualification in effect in (or exemption therefrom) effective during the Required Period for such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided Statement; provided, however, that the Company will shall not be required to (A) qualify generally to do business or as a dealer in securities in any jurisdiction where in which it is not then so qualified or take any action which would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent it to general service of process or taxation in any such jurisdiction)jurisdiction in which it is not then so subject;
(vig) notify each selling Stockholder subject to Section 4.2 and each distributor of such Registrable Shares identified by such StockholderArticle VI, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of as promptly as reasonably practicable after the occurrence of any event as contemplated by Sections 7.1(d)(v) or 7.1(d)(vi) hereof, use its reasonable best efforts to prepare (and furnish at its expense, subject to any notice by the Company in accordance with Section 7.1(d), to the Trust a result reasonable number of which copies of) a supplement or post-effective amendment to the Prospectus included in such applicable Registration Statement contains or a supplement to the related Prospectus (including by means of an Issuer Free Writing Prospectus), or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus or Issuer Free Writing Prospectus shall not contain an untrue statement of a material fact or omits a 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, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viih) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationagreement), lockups, opinions of counsel in usual and comfort letters)customary form, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the Trust or the managing underwriter, if any, to expedite the offer for sale or disposition of the Registrable Securities, and in connection therewith, upon such request and upon the date of closing of any sale of Registrable Securities in such Underwritten Registration:
(i) use its reasonable best efforts to obtain opinions of counsel to the Company (such counsel being reasonably satisfactory to the managing underwriter, if any) and underwritersupdates thereof covering matters customarily covered in opinions of counsel in connection with Underwritten Offerings, addressed to the Trust and the managing underwriter;
(ii) use its reasonable best efforts to obtain customary “comfort” letters from the independent certified public accountants of the Company (to the extent deliverable in accordance with their professional standards) addressed to the Trust (to the extent consistent with Statement on Auditing Standards No. 100 of the American Institute of Certified Public Accountants) and the managing underwriter, if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with Underwritten Offerings; and
(iii) provide officers’ certificates and other customary closing documents customarily delivered in connection with Underwritten Offerings and any reasonably requested by the managing underwriter, if any; provided that the Company shall only be required to comply with this clause (h): (x) in connection with an Underwritten Offering, (y) on the initial effective date of any Registration Statement and (z) on the date of filing of each of the Company’s reports on Form 10-K with the SEC; provided, howeverfurther, that such records and other information provided under with respect to clauses (Ay) and (Bz), the Company shall not be required to comply with this clause (h) above shall be subject any more than two times in any 12-month period in connection with Demand Registrations made pursuant to this Agreement.
(i) upon reasonable notice and at reasonable times during normal business hours, make reasonably available for inspection by a representative of the Trust, one firm of counsel for the Trust retained in accordance with Section 7.4, the managing underwriter, if any, participating in any disposition of Registrable Securities and its counsel and any single accountant retained by the Trust or any such confidential treatment underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the appropriate officers, directors and employees of the Company to make reasonably available for such inspection all such relevant information reasonably requested in writing by them in connection with the Registration Statement as is customary for “due diligence” investigations; provided that 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 shall be kept confidential by such Persons and shall be used solely for the purposes of exercising rights under this Agreement and such Person shall not engage in trading any securities of the Company until such material non-public information becomes properly available, except nothing in such writing shall restrict (i) disclosure of such information if it is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information if it is required by law (including any disclosure requirements pursuant to federal or state securities laws in connection with any disposition of Registrable Securities), (iii) sharing information with other underwriters’ due diligence reviews, agents or dealers participating in the disposition of any Registrable Securities, subject to the execution by such other underwriters, agents or dealers of reasonable non-disclosure agreements with the Company, (iv) using any such documents or other information in investigating or defending itself against claims made or threatened by purchasers, regulatory authorities or others in connection with the disposition of any Registrable Securities, (v) disclosure of such information if it becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such Person or (vi) disclosure of such information if it becomes available to any such Person from a source other than the Company and such source is not bound by a confidentiality agreement or confidentiality obligations or duties; and provided, further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of the Trust and the other parties entitled thereto by the counsel to the Trust retained in accordance with Section 7.4 or the counsel to the managing underwriter, if any;
(ixj) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC relating to such registration and make generally available to its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act, provided that the Company shall be deemed to have complied with this Section 7.1(j) if it has satisfied the provisions of Rule 158 under the Securities Act (or any similar rule promulgated under the Securities Act);
(k) use reasonable best efforts to cause all such Registrable Shares Securities covered by the applicable Registration Statement if the New Common Stock is then listed on the NYSE or quoted on the NASDAQ to continue to be so listed on each primary securities exchange (if any) on which securities or quoted for a reasonable period of time after the same class issued by the Company are then listedoffering;
(xl) provide a use its reasonable best efforts to procure the cooperation of the Company’s transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before in settling any proposed offering or sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be soldSecurities;
(xim) make generally available use its reasonable best efforts to Stockholders a consolidated earnings statement provide such information as may be reasonably required for any filings required to be made by the Trust or managing underwriter, if any, with the National Association of Securities Dealers, Inc. (which need not be auditedthe “NASD”) for a period of 12 months beginning after in connection with the effective date offering under any Registration Statement of the Registration Statement Registrable Securities (including, without limitation, such as soon as reasonably practicable after may be required by NASD Rule 2710 or 2720), and, upon the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) written request of the Securities Act and Rule 158 thereunderTrust, shall use reasonable best efforts to cooperate in connection with any filings required to be made with the NASD in that regard on or prior to the filing of any Registration Statement; and
(xiin) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of use its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome assist the Trust in the marketing of such failureRegistrable Securities in connection with Demand Registrations (including without limitation, shall not be a breach having officers of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on attend “road shows” for Underwritten Offerings and analyst or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to investor presentations and rating agency presentations and such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement other selling or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably informational activities requested by the Company and required to achieve effectiveness of Trust or the managing underwriter for such Registration StatementOfferings).
Appears in 3 contracts
Sources: Registration Rights Agreement (Owens Corning (Reorganized) Inc.), Registration Rights Agreement (Owens Corning), Registration Rights Agreement (Owens Corning/Fibreboard Asbestos Personal Injury Trust)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, if their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the case opinion of an Underwritten Offering counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling Holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, such number of copies as such selling Holder may reasonably request of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or underwriter);
(g) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (h) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which each selling Stockholder participates pursuant case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section 4(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or an S-3 Shelf Registrationnational securities exchange on which the Common Stock is listed, prior to the effectiveness of such Registration Statement (or, if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company;
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders Holders of the Registrable Shares) Securities), addressed to such underwriters each selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Qualified Holders and (v) deliver such documents and certificates for as may be reasonably requested by the Holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to Section 4(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(p) make available for inspection by a representative of the selling Holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectussubsidiaries, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of cause the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.of
Appears in 3 contracts
Sources: Registration Rights Agreement (US Foods Holding Corp.), Registration Rights Agreement (Us Foods, Inc.), Registration Rights Agreement (US Foods Holding Corp.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification Subject to the Company of joining in a request that terms and conditions hereof, whenever any Registrable Common Shares are required to be registered pursuant to this Article VAgreement or were required to be registered pursuant to the MSV Exchange Agreement, the Company SkyTerra shall use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration (if not previously effected) and the sale or distribution of such Registrable Common Shares (if not previously sold or distributed) in accordance with the intended methods method of disposition thereof, and, and pursuant thereto, the Company shall, thereto SkyTerra shall as soon expeditiously as practical as provided hereinpracticable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to promptly prepare and file with the SEC a Registration Statement the applicable registration statement with respect to such Registrable Common Shares (and any amendments, including any post-effective amendments or supplements to such registration statement SkyTerra deems to be necessary) and use its commercially reasonable efforts to cause such Registration Statement registration statement to become effective (unless it is automatically effective upon filing), and to comply with the provisions of the Securities Act applicable to it; provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company SkyTerra shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, for Motient copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counselfiled, including any comment letter from documents incorporated by reference in the SEC and proposed response thereto, registration statement and, if requested by such counselMotient, the exhibits incorporated by reference so as to provide such Motient and its counsel a reasonable opportunity to participate review and comment on such documents, and SkyTerra (i) will make such changes and additions thereto as reasonably requested by counsel to Motient prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto and (ii) if Motient is an underwriter or controlling person of SkyTerra, to include therein material relating to Motient or the plan of distribution for the Common Shares registered thereunder, furnished to SkyTerra in writing, which, in the preparation reasonable judgment of Motient, should be included;
(b) furnish to Motient such number of copies of such Registration Statement registration statement, each amendment and each Prospectus supplement thereto, the prospectus included therein in such registration statement and such other opportunities documents as Motient may reasonably request in order to conduct facilitate the disposition of such Common Shares registered thereunder; provided, however, that SkyTerra shall have no obligation to furnish copies of a reasonable investigation within final prospectus if the meaning conditions of Rule 172(c) under the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated Act are satisfied by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawSkyTerra;
(iic) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement with respect to such Common Shares registered thereunder effective for the relevant period required hereunder, but no longer than is necessary applicable time periods as specified in Section 1.1 in order to complete the distribution disposition of the Common Shares covered by such Registration Statement, registration statement and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Common Shares covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition thereof as set forth in such Registration Statementregistration statement;
(iiid) use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Common Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder Motient (or any other holder whose securities are included in a registration statement on which Common Shares are registered) reasonably requests and continue such registration do any and all other acts and things which may be reasonably necessary or qualification in effect advisable to enable Motient to consummate the disposition in such jurisdictions for as long as of the applicable Registration Statement may be required to be kept effective under this Agreement Common Shares owned by Motient (provided that the Company will SkyTerra shall not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v)subsection, (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction);
(vie) notify each selling Stockholder and each distributor of such Registrable Shares identified by such StockholderMotient, at any time when a Prospectus prospectus relating thereto would is required to be required delivered under the Securities Act Act, (i) when a registration statement or any post-effective amendment has become effective under the Securities Act, (ii) of any written request by the SEC for amendments or supplements to be delivered by such distributorregistration statement or prospectus, (iii) of the occurrence happening of any event as a result of which the Prospectus prospectus included in such Registration Statement registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (whereupon Motient shall immediately cease any offers, sales or other distribution of Common Shares registered thereunder), and, subject to 1.3(c), SkyTerra shall promptly prepare a supplement or amendment to such prospectus so that, as thereafter used by Motient for the resale of the Common Shares or delivered to the stockholders of Motient in connection with the distribution of such Common Shares, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at and (iv) of the request issuance of such Stockholder, any stop order suspending the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement effectiveness of a material fact registration statement, or omit to state of any material fact necessary to make order suspending or preventing the statements therein, in light use of any related prospectus or suspending the qualification of any of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of Common Shares included in such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)registration statement for sale or distribution in any jurisdiction;
(viif) in the case event of an Underwritten Offering the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Shares included in which each selling Stockholder participates pursuant such registration statement for sale or distribution in any jurisdiction, SkyTerra shall use its commercially reasonable efforts promptly to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as obtain the managing underwriters withdrawal of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, shall prepare and making such representations and warranties to the holders of such Registrable Shares and the underwritersfile an amended or supplemented prospectus, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, required; and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(xg) provide a transfer agent and registrar for all such Registrable Common Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be soldregistration statement;
(xih) use its commercially reasonable efforts to cause such Common Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable Motient to complete the disposition of the Common Shares covered by such registration statement and comply with the provisions of the Securities Act with respect to the disposition of all Common Shares covered by such registration statement during such period in accordance with the intended methods of disposition by Motient thereof set forth in such registration statement;
(i) make available for inspection by Motient, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by Motient or underwriter, all financial and other records, pertinent corporate documents and properties of SkyTerra, and cause SkyTerra’s officers, managers, employees and independent accountants to supply all information reasonably requested by SkyTerra, underwriter, attorney, accountant or agent in connection with such registration statement; and
(j) make generally available to Stockholders its stockholders a consolidated earnings statement (which need not be audited) for a period of the 12 months beginning after the effective date of the Registration Statement such registration statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountAct.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 3 contracts
Sources: Exchange Agreement (Motient Corp), Registration Rights Agreement (Skyterra Communications Inc), Exchange Agreement (Skyterra Communications Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company registration of joining in a request that any the Registrable Shares be registered pursuant to contemplated by this Article VVI, the Company shall use reasonable best efforts to effectshall, as soon as practical as provided until the Registration Rights Termination Date, cooperate in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company and shall, as soon as practical as provided herein:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and as provided herein, make all required filings with FINRA and, if such Registration Statement is not automatically effective upon filing, use reasonable best efforts to cause such Registration Statement to become be declared effective (unless it is automatically effective upon filing), as promptly as practicable after the filing thereof; provided, however, that that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto and(including free writing prospectuses under Rule 433 under the Securities Act, each, a “Free Writing Prospectus”), the Company shall furnish to the Stockholders and the managing underwriter(s), if any, copies of the Registration Statement and all other documents proposed to be filed (including exhibits thereto), including, upon the reasonable request of the Stockholders and to the extent reasonably practicable, all documents that would be incorporated by reference or deemed to be incorporated by reference in a therein, which Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such the Stockholders and their counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference thereinFree Writing Prospectuses) with respect to a Demand Registration any registration pursuant to Section 6.1 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or Stockholders and their counsel) counsel or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, unless in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawLaw;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and Statement, the Prospectus used in connection therewith (including Free Writing Prospectuses) and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statementset forth in Section 6.1(b), and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(iiic) use reasonable best efforts furnish to obtain the withdrawal Stockholders and the managing underwriter(s), if any, such number of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverconformed copies, without charge, of such number of copies of the Registration Statement, each amendment and supplement thereto, including each preliminary and final Prospectus Prospectus, any Free Writing Prospectus, all exhibits and any supplement thereto other documents filed therewith and such other documents as each selling Stockholder such Persons may reasonably request request, including in order to facilitate the disposition of the Registrable Shares in accordance with the intended method or methods of disposition thereof; and the Company, subject to Section 6.1(d), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by Stockholders and the managing underwriter(s), if any, in connection with the offering and sale of the Registered Shares covered by such Registration Statement in conformity with the requirements of the Securities ActProspectus and any such amendment or supplement thereto;
(vd) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or “blue sky laws sky” Laws of such U.S. jurisdictions as each selling Stockholder the Stockholders reasonably requests request and continue such registration do any and all other acts and things that may be necessary or qualification in effect reasonably advisable to enable the Stockholders to consummate the disposition in such jurisdictions for as long as of the applicable Registration Statement may be required to be kept effective under this Agreement Registrable Shares in accordance with the intended method of distribution thereof (provided that the Company will shall not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph subsection; (v), (Bii) subject itself to taxation in any such jurisdiction wherein it is not so subject; or (Ciii) consent take any action which would subject it to general service of process in any such jurisdictionjurisdiction wherein it is not so subject);
(vie) promptly notify each selling Stockholder the Stockholders and each distributor of such Registrable Shares identified by such Stockholderthe managing underwriter(s), if any, at any time when a Prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributor, of the occurrence of any event or existence of any fact as a result of which the Prospectus (including any information incorporated by reference therein) included in such Registration Statement Statement, as then in effect, contains an untrue statement of a material fact or omits a material any fact necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading, and, at as promptly as practicable upon discovery, prepare and furnish to the request Stockholders a reasonable number of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, copies of a supplement or amendment to such Prospectus Prospectus, or file any other required document, as may be necessary so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viif) in notify the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand RegistrationStockholders, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of Stockholders’ counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters underwriter(s) of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the any underwritten offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity for amendments or supplements to the such Registration Statement or the to such Prospectus or for any additional information regarding such Stockholder;
information; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the Registration Statement;
initiation of any proceedings for that purpose; and (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of such securities for offering or sale in any jurisdiction, or the institution of any proceedings for any such purposes;
(g) use its reasonable best efforts to cause all such Registrable Shares for sale under covered by such Registration Statement to be listed (after notice of issuance) on NASDAQ or the applicable principal securities exchange or blue sky laws of any jurisdiction; andinterdealer quotation system on which the Common Stock are then listed or quoted;
(5h) if at any time use its reasonable best efforts to cooperate with the Company has reason to believe that Stockholders and the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viimanaging underwriter(s), (viii) if any, to facilitate the timely preparation and (xi) delivery of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at certificates representing the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold under the Registration Statement in a form eligible for deposit with the offering would reasonably Depository Trust Corporation not bearing any restrictive legends (other than as required by the Depository Trust Corporation) and not subject to any stop transfer order with any transfer agent, and cause such Registrable Shares to be expected to yield gross proceeds issued in such denominations and registered in such names as the managing underwriter(s), if any, may request in writing or, if not an underwritten offering, in accordance with the instructions of the Stockholders in each case at least two (2) Business Days prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder any sale of at least the Minimum Amount.Registrable Shares;
(bi) The Company may require each selling Stockholder enter into such agreements (including underwriting agreements with customary provisions) and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding take all such Person and the distribution of such securities other actions as the Company may from time to time Stockholders or the managing underwriter(s), if any, reasonably request in writing order to expedite or facilitate the disposition of such Registrable Shares;
(j) make available upon reasonable notice and during normal business hours for inspection by the Stockholders and Stockholders’ counsel, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Stockholders or underwriter(s), all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by the Stockholders or such underwriter(s), attorney, accountant or agent in connection with such registration.Registration Statement; provided, however, that the Stockholders shall, and shall cause each such underwriter(s), accountant or other agent to, (i) enter into a customary confidentiality agreement or arrangement in form and substance reasonably satisfactory to the Company; and (ii) minimize, to the extent reasonably practicable, the disruption to the Company’s business in connection with the foregoing;
(ck) Each Stockholder agrees by having otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its Shares treated security holders, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use reasonable best efforts to obtain the withdrawal of such order as soon as reasonably practicable;
(m) cause its senior management to support the marketing of the Registrable Shares hereunder that, upon being advised in writing covered by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares Registration Statement pursuant to any Registration Statement (other including participation in “road shows”); provided, that the Company shall not be obligated to participate in any such “road show” more than those pursuant one (1) time in any 120 day period; provided, further, that the Company may request a change in the dates of any such “road show” by not more than ten (10) Business Days if the Company determines, in its good faith reasonable judgment, that the initially proposed dates for such “road show” would adversely and materially interfere with the performance of senior management’s duties to a plan that is in effect prior the Company (and the Stockholders will give reasonable consideration to accommodating any such time and that complies with Rule 10b5-1 request);
(n) obtain one or more comfort letters, addressed to the Stockholders, dated the effective date of such Registration Statement and, if requested by the Stockholders, dated the date of sale by the Stockholders (and, if such registration includes an underwritten public offering, addressed to each of the Exchange Actmanaging underwriter(s) until it is advised in writing and dated the date of the closing under the underwriting agreement for such offering), signed by the Company that independent public accountants who have issued an audit report on the use Company’s financial statements included in such Registration Statement in customary form and covering such matters of the Prospectus may type customarily covered by comfort letters as the Stockholders reasonably requests;
(o) provide legal opinions of the Company’s outside counsel (which counsel and opinions (in form, scope and substance) shall be resumed reasonably satisfactory to the managing underwriter(s), if any, and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vithe Stockholders’ counsel), addressed to the Stockholders, dated the effective date of such Registration Statement, each amendment and supplement thereto, and, if so directed requested by the CompanyStockholders, dated the date of sale by the Stockholders (and, if such registration includes an underwritten public offering, addressed to each of the managing underwriter(s) and dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each Stockholder will deliver amendment and supplement thereto (including the preliminary Prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature and such other matters as may be reasonably requested by the Stockholders’ counsel (and, if applicable, by the managing underwriter(s)); and
(p) use its reasonable best efforts to take or cause to be taken all other actions, and do and cause to be done all other things, necessary or reasonably advisable in the opinion of the Stockholders’ counsel to effect the registration of such Registrable Shares contemplated hereby. In the case of any underwritten offering of Registrable Shares registered under a Registration Statement filed pursuant to Section 6.1(a), (i) all Registrable Shares shall be subject to the applicable underwriting agreement with customary terms and the Stockholders may not participate in such offering or registration unless such Stockholders agrees to sell such Stockholders’ securities on the basis provided therein; and (ii) the Stockholders may not participate in such offering or registration unless such Stockholders complete and execute all questionnaires, indemnities, underwriting agreements and other documents (other than powers of attorney) reasonably required by the managing underwriter(s) to be executed in connection therewith, and provide such other information to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of or the Prospectus covering underwriter(s) as may be reasonably requested to offer or register such Stockholders’ Registrable Shares current at the time of receipt of such notice, Shares; provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained (A) no Stockholder shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file make any representations or warranties other than, on a Registration Statement or include several and not joint basis, those related to its title and ownership of, and power and authority to transfer, the Registrable Shares in a Registration Statement unless it has received from each owned by such Stockholder participating included therein and as to the accuracy and completeness of statements made in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information regarding about such Stockholder reasonably requested by prepared and furnished to the Company or the managing underwriter(s) by such Stockholder pertaining exclusively to such Stockholder and required (B) the aggregate amount of liability of each Stockholder pursuant to achieve effectiveness any indemnification obligation thereunder (which, for the avoidance of doubt, shall be on a several and not joint basis) shall not exceed the net proceeds received by such Registration StatementStockholder from such offering.
Appears in 3 contracts
Sources: Stockholders Agreement (Avista Capital Partners GP, LLC), Stockholders Agreement (Angiodynamics Inc), Stockholders Agreement (Angiodynamics Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the Company’s obligations hereunder and subject to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article Vapplicable terms and conditions set forth herein, the Company shall use reasonable best efforts to effect, as soon promptly as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinreasonably practicable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement on any appropriate form under the Securities Act with respect to such Registrable Shares and use its reasonable best efforts to cause such Registration Statement to become effective (unless it is automatically effective upon filing), by the SEC as promptly as reasonably practicable; and to remain continuously effective; provided, however, that before filing a Registration Statement Statement, Prospectus or preliminary Prospectus or any amendments amendment thereof or supplements supplement thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Private Equity Holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, counsel and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement (including a Shelf Registration Statement), Prospectus or Prospectus, preliminary Prospectus or any amendments amendment thereof or supplements supplement thereto (including such documents document that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration Offering to which the holders of a majority of the Registrable Shares Private Equity Holder covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement and supplements to such Registration Statement and the Prospectus used in connection therewith and such amendments or supplements to any Issuer Free Writing Prospectus as may be necessary to comply with the applicable requirements of the Securities Act and or as necessary to keep such Registration Statement effective for the relevant period of time required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statementthis Agreement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Registrable Shares covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the Holders thereof set forth in such Registration Statement;
(iiic) use reasonable best efforts furnish to obtain each Holder of Registrable Shares covered by a Registration Statement and, in the withdrawal event of any order suspending a Public Offering, the effectiveness of any Registration Statement, or the lifting of any suspension underwriters of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, securities being offered such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus), any documents incorporated by reference therein and final Prospectus and any supplement thereto such other documents as each selling Stockholder such Holder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered owned by such Registration Statement in conformity with Holder or the sale of such securities by such underwriters (it being understood that, subject to Section 2.4 and the requirements of the Securities ActAct and applicable state securities laws, the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Holder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the Registration Statement of which such Prospectus, amendment or supplement is a part); provided, however, that any such document available on the SEC’s ▇▇▇▇▇ database shall satisfy any such obligation;
(vd) if applicable, use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder Holder or, in the case of a Public Offering, the managing underwriter reasonably requests and continue requests; use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in effect in which such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder to consummate the disposition of the Registrable Shares owned by such Holder in such jurisdictions (provided provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it or its subsidiaries would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (Cii) consent to general service of process in any such jurisdiction);
(vie) promptly notify each selling Stockholder and each distributor Holder of such Registrable Shares identified covered by such Stockholdera Registration Statement and, in the case of a Public Offering, each underwriter (i) when a Prospectus or any prospectus supplement or amendment has been filed and, with respect
to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, (iii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or related Prospectus or for additional information, (iv) if at any time when a Prospectus relating thereto would be required under the Securities Act Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.6(o) below cease to be delivered by such distributortrue and correct, and (v) of the occurrence happening of any event as which makes any statement made in a result Registration Statement or related Prospectus untrue or which requires the making of which the Prospectus included any changes in such Registration Statement contains an Statement, Prospectus or documents incorporated therein by reference so that they will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment so that, as thereafter deliverable to the purchasers of such Registrable Shares, such Prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at ;
(f) make generally available to the request of such Stockholder, the Company shall use reasonable best efforts to prepareCompany’s stockholders, as soon as practicalreasonably practicable, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers an earnings statement satisfying the provisions of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light Section 11(a) of the circumstances Securities Act and Rule 158 under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)Securities Act;
(viig) in the case of an Underwritten Offering a Public Offering, if requested by the managing underwriter or any Holder participating in which each selling Stockholder participates such Public Offering, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any Holder reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such Holder, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(h) promptly make available for inspection by any Holder disposing of Registrable Shares pursuant to any Registration Statement, any underwriter participating in any disposition pursuant to any Registration Statement, and any attorney, accountant or other agent or representative retained by any such Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as shall be reasonably necessary to enable them to exercise their due diligence responsibility and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement or the release of such Records is ordered pursuant to a Demand Registrationsubpoena or other order from a court of competent jurisdiction, a Piggyback Registration the Company shall not be required to provide any information under this subparagraph (h) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or an S-3 Shelf Registration, (ii) if either (A) the Company is in the process of requesting or has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Inspectors requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Inspector agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(i) in the case of a Public Offering, furnish to each Holder and underwriter participating in such Public Offering a signed counterpart of (A) an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinion or opinions of counsel to the Company and (B) a comfort letter or comfort letters from the Company’s independent public accountants and the independent public accountants who have audited any other financial statements (including with respect acquired businesses) included or incorporated by reference into the Prospectus, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters), and take all such other customary and reasonable actions as the case may be, as the Holders or managing underwriters underwriter reasonably requests;
(j) cause the Registrable Shares included in any Registration Statement to be (A) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed prior to the effectiveness of such offering may request Registration Statement or (B) authorized to be quoted and/or listed (to the extent applicable) on an automated quotation system if the Registrable Shares so qualify;
(k) provide a transfer agent and registrar for all Registrable Shares registered hereunder and provide a CUSIP number for the Registrable Shares included in order to facilitate any Registration Statement not later than the disposition effective date of such Registrable Shares, including, causing Registration Statement;
(l) cause its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members participation in “road shows”) taking into account the Company’s business needs;
(m) cooperate with counsel to the Holders and, in the case of senior management a Public Offering, each underwriter participating in the disposition of such Registrable Shares in connection with any filings required to be made with FINRA;
(n) during the period when the Prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Company available at reasonable times and places to participate Exchange Act;
(o) in “road-shows” that the case of a Public Offering, enter into such agreements (including underwriting agreements in the managing underwriter determines underwriter’s customary form) as are necessary to effect customary in connection with a Public Offering; and take all such other actions reasonably requested by the offering), adding information Holders of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters underwriters, if any) to expedite or facilitate the Prospectusdisposition of such Registrable Shares, and making in such connection whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;requested and (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and
(viiip) in the case of an Underwritten Offering in which advise each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder Holder of Registrable Shares (unless such accountants covered by a Registration Statement, promptly after it shall be prohibited from so addressing such letters by applicable standards receive notice or obtain knowledge thereof of the accounting profession) issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) promptly use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to prevent the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect or to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices obtain its withdrawal at the time the offering is requested by earliest possible moment if such Stockholder) the number of Registrable Shares to stop order should be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountissued.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Focus Financial Partners Inc.), Registration Rights Agreement (Focus Financial Partners Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(m) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 3(e) that are not, in the case opinion of an Underwritten Offering counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 3, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(h) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten business days prior to having to issue the securities;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which each selling Stockholder participates pursuant case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(j) upon the occurrence of any event contemplated by Section 3(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration or Statement from and after a date not later than the effective date of such Registration Statement;
(l) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, prior to the effectiveness of such Registration Statement (or, if such Registration is an S-3 Shelf Registrationinitial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten business days following the effectiveness of such Registration Statement);
(m) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 4 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Stockholders and (v) deliver such documents and certificates as may be reasonably requested by the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 3(m)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(n) make available for inspection by a representative of the selling Holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such records and other information provided under clauses (A) and (B) above shall be subject kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such confidential treatment as Person, is customary for underwriters’ due diligence reviews;
required by law or applicable legal process or (ixiii) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make information becomes generally available to Stockholders the public other than as a consolidated earnings statement result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (which need not i) or (ii) above, such Person shall be audited) for a period of 12 months beginning after required to give the effective date Company written notice of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect proposed disclosure prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), disclosure and, if so directed requested by the Company, each Stockholder will deliver to assist the Company all copiesin seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, other than permanent file copies then in each Stockholder’s possession, of no such information shall be used by such Person as the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or basis for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.market t
Appears in 3 contracts
Sources: Registration Rights Agreement (Fidelity & Guaranty Life), Registration Rights Agreement (Harbinger Group Inc.), Registration Rights Agreement (Fidelity & Guaranty Life)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective and to remain effective as provided herein (unless it including by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is automatically effective upon filingthen eligible to use such registration), ; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of Sponsor Investors and the Registrable Family Investor who are selling Shares covered by under such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Securities held by the Sponsor Investors and the Family Investor (represented by the Family Representative) who are selling Shares covered by under such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 5(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to each selling holder of Registrable Securities, and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 5, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event as contemplated by Section 5(c)(ii), 5(c)(iii), 5(c)(iv), 5(c)(v) or 5(c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to prepare, as soon as practical, cause all shares (i) to be offered by the Company in connection with the initial Public Offering to be authorized to be listed on a supplement or amendment national securities exchange and (ii) of Registrable Securities covered by such Registration Statement to such Prospectus so that, as thereafter delivered be authorized to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of be listed on a material fact or omit to state any material fact necessary to make the statements therein, in light national securities exchange if shares of the circumstances under which they were madeparticular class of Registrable Securities are at that time, not misleading (which notice shall notify or will be immediately following the selling Stockholders only of the occurrence of offering, listed on such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);exchange.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Requisite Investors (which, if there are not more than two Qualified Holders, shall mean, for purposes of this sentence, those holders of more than 50% of the shares of Common Stock held by the Investors (including indirect holdings through Holdings)) and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares to be Securities being sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company made pursuant to Section 5(o)(i) above and to evidence compliance with any customary conditions contained in any the underwriting agreement (including any or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement) contemplated by this Section 5.07 cease , or as and to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountextent required thereunder.
(bp) The Company may require each Make available for inspection by a representative of the selling Stockholder and each distributor holders of Registrable Shares as to which Securities, any registration is being effected to furnish to the Company information regarding underwriter participating in any such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales disposition of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), andSecurities, if so directed any, and any attorneys or accountants retained by the Companysuch selling holders or underwriter, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such noticeoffices where normally kept, providedduring reasonable business hours, howeverall financial and other records, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare pertinent corporate documents and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.propertie
Appears in 3 contracts
Sources: Registration Rights Agreement (Hca Inc/Tn), Registration Rights Agreement (Marietta Surgical Center, Inc.), Registration Rights Agreement (Hca Inc/Tn)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and(but not including any Form 8-K, to the extent reasonably practicableForm 10-Q, documents proxy statement or other similar filing or amendment thereto that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter relating to such document from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such (but not including any Form 8-K, Form 10Q, proxy statement or other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement similar filing or Prospectus, or any amendments or supplements amendment thereto (including such documents that, upon filing, that would be incorporated or deemed to be incorporated therein by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(sreference), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed (but not including any Form 8-K, Form 10-Q, proxy statement or other similar filing or amendment thereto that would be incorporated or deemed to be incorporated therein by reference, unless a request for registration pursuant to Section 2.1 or 2.2 has been made), and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any underwriting agreement contemplated by Section 2.3(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to Section 2.4(b), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any Selling Holder or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v)then so qualified, (Bii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (Ciii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.3(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of In connection with an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registrationunderwritten offering, enter into an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters)substance as is customary in underwritten offerings, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Sharesconnection therewith, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering Registrable Securities opinions and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records negative assurances of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel counsel, opinions and opinions negative assurance (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions and negative assurances requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters of any Underwritten Offeringunderwriter(s), if any:
, and (1v) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request deliver such customary documents and certificates as may be reasonably requested by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) Holders of a majority of the notification Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the Company by the SEC continued validity of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, pursuant to which the Holders agree to use the following information solely for the purpose of their due diligence review in connection with an offering of securities by the Company, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, each of the type which would be included in a reasonable and customary due diligence review in connection with an offering of securities, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder thatSubject to the provisions of Section 2.8(b) hereof, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct connection with any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Demand Registration Statement (other than those pursuant to a plan that is in effect prior a “fully underwritten marketed offering”, cause its officers to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering without limitation, by participation in which a Stockholder participates has been priced but not completed prior to “road shows”) as reasonably requested by the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to underwriters; provided that such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company officers shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in take any action which would unreasonably interfere with the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date normal business operations of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration StatementCompany.
(r) Otherwise use its reas
Appears in 3 contracts
Sources: Registration Rights Agreement (Leucadia National Corp), Registration Rights Agreement (Leucadia National Corp), Registration Rights Agreement (Mueller Industries Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon promptly as practical as provided hereinpracticable:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent as promptly as reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to but no later than forty-five (45) days after a request for a Demand Registration, the Company shall furnish or otherwise make available subject to the holders postponement provisions herein) the Demand Registration Statement (including a Prospectus therein and any supplement thereto and all exhibits and financial statements required by the SEC to be filed therewith) to effect such registration and, subject to the efforts standard herein, cause such Registration Statement to become effective, and before filing such Registration Statement or any amendments or supplements thereto, provide to the representative(s) on behalf of the Registrable Shares covered by TPG Stockholders included in such Registration Statement, their counsel Statement (to be chosen by the TPG Stockholders) and the any managing underwriter(s), if any, copies of all such documents proposed to be filed (or furnished, including exhibits thereto)documents incorporated by reference, which documents will be subject and the representative(s) and the managing underwriter(s) and their respective counsel shall have the opportunity to the reasonable review and comment of such counselthereon, and the Company will make such other documents changes and additions thereto as may reasonably be requested by such counsel, including any comment letter from the SEC representative(s) and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s)) and their respective counsel prior to such filing, if any, shall unless the Company reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, objects to such filing is necessary to comply with applicable lawchanges or additions;
(ii) use reasonable best efforts to prepare and file with the SEC such pre- and post-effective amendments and supplements to such a Shelf Registration Statement or Demand Registration Statement, and the Prospectus used in connection therewith or any free writing prospectus (as defined in SEC rules) as may be necessary required by applicable securities laws or reasonably requested by the TPG Stockholder or any managing underwriter(s) to comply with maintain the applicable requirements effectiveness of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, registration and to comply with the provisions of applicable requirements of the Securities Act securities laws with respect to the disposition of all the Shares securities covered by such registration statement during the period in which such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementis required to be kept effective;
(iii) use reasonable best efforts furnish to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension each TPG Stockholder of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, securities being registered and each managing underwriter without charge, such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits other than those which are being incorporated into such Registration Statement by reference and that are publicly available), such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement and any other Prospectus filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, and such other documents, as the TPG Stockholders and any managing underwriter(s) may reasonably request;
(viv) use its reasonable best efforts to register or qualify such all Registrable Shares Securities under such other securities or “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder the TPG Stockholders and any managing underwriter(s) may reasonably requests and continue request; provided, however, that the Company shall not for any such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may purpose be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign company in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v)Section 3, (B) subject itself or to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction), or to be subject to any material tax obligation in any such jurisdiction where it is not then so subject;
(viv) promptly notify each selling Stockholder the TPG Stockholders and each distributor of such Registrable Shares identified by such Stockholder, any managing underwriter(s) at any time when the Company becomes aware that a Prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributorAct, of the occurrence happening of any event as a result of which the Prospectus included in such Registration Statement contains Statement, as then in effect, includes an untrue statement of a material fact or omits a to state any material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleading, and, at to promptly prepare and furnish without charge to the request TPG Stockholders and any managing underwriter(s) a reasonable number of copies of a supplement to or an amendment of such Stockholder, the Company shall use reasonable best efforts to prepare, Prospectus as soon as practical, a supplement or amendment to such Prospectus may be necessary so that, as thereafter delivered to any prospective the purchasers of such Registrable Sharessecurities, such Prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viivi) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel provide and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed cause to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement not later than the effective date of such Registration Statement;
(vii) reasonably cooperate with the TPG Stockholders and any managing underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, and enable certificates for such Registrable Securities to be issued for such number of shares and registered in such names as the TPG Stockholders and any managing underwriter(s) may reasonably request;
(viii) list all Registrable Securities covered by such Registration Statement andon any securities exchange on which any such class of securities is then listed and cause to be satisfied all requirements and conditions of such securities exchange to the listing of such securities that are reasonably within the control of the Company;
(ix) notify each TPG Stockholder and any managing underwriter(s), a reasonable promptly after it shall receive notice thereof, of the time before any proposed sale of Registrable Shares pursuant to a when such Registration Statement, provide or any post-effective amendments to the transfer agent with printed certificates for the Registrable Shares to be soldRegistration Statement, shall have become effective;
(xix) to make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the each TPG Stockholder whose Registrable Securities are included in such Registration Statement and any managing underwriter(s) as soon as reasonably practicable after the end same is prepared and publicly distributed, filed with the SEC, or received by the Company, an executed copy of each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and any item of correspondence received from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such periodRegistration Statement, which earnings statement it being understood that each TPG Stockholder receiving such material from the Company shall satisfy and shall cause its representatives to keep such materials confidential. The Company will as soon as reasonably practicable notify the requirements of an earning statement under Section 11(aTPG Stockholders and any managing underwriter(s) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters effectiveness of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the such Registration Statement or any post-effective amendmentamendment or the filing of the Prospectus supplement contemplated herein. the Company will as soon as reasonably practicable respond reasonably and completely to any and all comments received from the SEC or the staff of the SEC, when with a view towards causing such Registration Statement or any amendment thereto to be declared effective by the same has become effectiveSEC as soon as reasonably practicable and shall file an acceleration request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review;
(2xi) advise each TPG Stockholder and any managing underwriter(s), promptly after it shall receive notice or obtain knowledge thereof, of (A) the issuance of any request stop order, injunction or other order or requirement by the SEC or any other Government Entity for amendments or supplements to suspending the effectiveness of such Registration Statement or the Prospectus initiation or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation threatening of any proceeding with respect for such purpose and use all reasonable best efforts to prevent the issuance by the SEC of any stop order, injunction or other order suspending the effectiveness of the Registration Statement;
or requirement or to obtain its withdrawal if such stop order, injunction or other order or requirement should be issued, (4B) of the receipt by the Company of any notification with respect to the suspension of the qualification registration of the subject shares of the Registrable Securities in any state jurisdiction and (C) the removal of any Registrable Shares for sale under such stop order, injunction or other order or requirement or proceeding or the applicable securities or blue sky laws lifting of any jurisdiction; andsuch suspension;
(5xii) if upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company, make available for inspection by one representative on behalf of all TPG Stockholders included in a Registration Statement whose Registrable Securities are included in such registration statement (to be chosen by the TPG Stockholders) and any managing underwriter(s), and any attorney, accountant or other agent retained by any such TPG Stockholder or underwriters, at any time the Company has reason to believe that the representations reasonable times and warranties in a reasonable manner, all pertinent financial and other records and corporate documents of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease Company, and cause the Company’s officers, directors and employees to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is supply all information reasonably requested by any such TPG Stockholder) , sales or placement agent, underwriter, attorney, accountant or agent to conduct a reasonable investigation within the number meaning of Registrable Shares to be sold Section 11 of the Securities Act that is customary for a participant in the a securities offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, registration statement; provided, however, that the time periods under this Article V foregoing investigation and information gathering shall be coordinated on behalf of such parties by one firm of counsel designated by and on behalf of such parties;
(xiii) if requested by any TPG Stockholder of Registrable Securities named in such Registration Statement or any managing underwriter(s), promptly incorporate in a Prospectus supplement or post-effective amendment such information as such TPG Stockholder or managing underwriter(s) reasonably requests to be included therein, including, without limitation, with respect to the length Registrable Securities being sold by such TPG Stockholder, the purchase price being paid therefor by any underwriters and with respect to any other terms of time that an underwritten offering of the effectiveness Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xiv) reasonably cooperate with each TPG Stockholder and any managing underwriter(s) participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(xv) in the case of an underwritten offering, (A) enter into such customary agreements (including an underwriting agreement in customary form), (B) take all such other customary actions as the managing underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, causing senior management and other the Company personnel to reasonably cooperate with the TPG Stockholder(s) whose Registrable Securities are included in a Registration Statement must be maintained shall automatically be extended and the underwriter(s) in connection with performing due diligence) and (C) cause its counsel to issue opinions of counsel addressed and delivered to the underwriter(s) in form, substance and scope as are customary in underwritten offerings, subject to customary limitations, assumptions and exclusions; provided, however, that such recipients furnish such written representations or acknowledgement as are customarily provided by underwriters who receive such opinions; and
(xvi) if requested by the amount managing underwriter(s) of an underwritten offering, use reasonable best efforts to cause to be delivered, upon the pricing of any underwritten offering, and at the time of closing of a Stockholder is sale of Registrable Securities pursuant thereto, “comfort” letters from the Company’s independent registered public accountants addressed to the underwriter(s) and, with respect to an offering by the TPG Stockholders pursuant to this Agreement, request the delivery of such “comfort” letters at such times addressed to the TPG Stockholders stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by “comfort” letters of the independent registered public accountants delivered in connection with primary underwritten public offerings; provided, however, that such recipients furnish such written representations or acknowledgement as are customarily required to discontinue disposition of receive such securitiescomfort letters.
(db) The Company may prepare and deliver an issuer free-writing prospectus (Subject to the last sentence of this Section 3(b), as such term is defined in Rule 405 under a condition precedent to the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure obligations of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, each TPG Stockholder shall furnish in writing to the Company such information regarding such TPG Stockholder (and any of its Affiliates), the Registrable Securities to be sold and the intended method of distribution of such Registrable Securities reasonably requested by the Company and as is reasonably necessary or advisable for inclusion in the Registration Statement relating to such offering pursuant to the Securities Act. Notwithstanding the foregoing, in no event will any party be required to achieve effectiveness disclose to any other party any personally identifiable information or personal financial information in respect of any individual, or confidential information of any Person. Each TPG Stockholder agrees by acquisition of the Registrable Securities that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(a)(v), such TPG Stockholder shall forthwith discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such TPG Stockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(a)(v); (ii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (A) of Section 3(a)(xi), such TPG Stockholder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such TPG Stockholder’s receipt of the notice described in clause (C) of Section 3(a)(xi); and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such TPG Stockholder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such TPG Stockholder’s receipt of the notice described in clause (C) of Section 3(a)(xi). The length of time that any registration statement is required to remain effective shall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, provided, however, in no event shall any Registration StatementStatement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Appears in 3 contracts
Sources: Registration Rights Agreement (Assurant Inc), Registration Rights Agreement, Registration Rights Agreement (Assurant Inc)
Registration Procedures. The Company shall:
(a) Whenever a Stockholder requests or provides notification to during the Company of joining in a request period that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article VRegistration Statement is effective, use its reasonable best efforts to prepare and file with the SEC a from time to time such amendments and supplements to the Registration Statement and Prospectus used in connection therewith as may be necessary to (i) keep such Registration Statement (or a successor Registration Statement filed with respect to such Registrable Shares Securities) effective and cause such to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered thereby and (ii), not less than once a quarter (subject to Section 3(b)), (x) name as selling securityholders therein any Holder and (y) add Registrable Securities to the Registration Statement as a result of the receipt by any Holder of additional Registrable Securities pursuant to become effective a Settlement or Reclassification, in either case, who provides the Company a duly completed and executed Notice and Questionnaire on or prior to the date ten (unless it is automatically effective upon 10) Business Days prior to such filing), provided, however, ; provided that the Company’s obligation under clause (ii) with respect to any quarter shall be deemed satisfied with no further action of the Company if the Company does not receive a single duly completed and executed Notice and Questionnaire during such quarter; provided further that before filing a Registration Statement or Prospectus Prospectus, or any amendments or supplements thereto and, (other than any reports or other documents filed with the SEC pursuant to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationExchange Act), the Company shall (i) furnish or otherwise make available to counsel for the holders sellers of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s), if any, Statement copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC SEC, (ii) fairly and proposed response theretoin good faith consider such changes in any such documents prior to or after the filing thereof as the counsel to the Holders of Registrable Securities being sold may reasonably request, andand (iii) make such representatives of the Company as shall be reasonably requested by the Holders of the Registrable Securities being sold available for discussion of such documents; provided further that, in addition to the Notice and Questionnaire, each Holder agrees to deliver such notices, questionnaires and other information as the Company may reasonably request in writing, if requested by any, to the Company within ten (10) Business Days after such counsel, provide request;
(b) furnish to each Holder of Registrable Securities being registered such counsel reasonable opportunity to participate in the preparation number of copies of such Registration Statement and of each Prospectus included therein amendment and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Actsupplement thereto (in each case including all exhibits filed therewith, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(sreference), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the Prospectus included in such Registration Statement (including each preliminary prospectus and final Prospectus summary prospectus), in conformity with the requirements of the Securities Act, and any supplement thereto such other documents as each selling Stockholder such Holder may reasonably request request, without charge, in order to facilitate the disposition of the Registrable Shares Securities by such Holder (it being understood that, subject to the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the Prospectus and any amendment or supplement thereto by each selling Stockholder Holder in connection with the offering and sale of the Registrable Securities covered by the Registration Statement of which such Prospectus, amendment or supplement is a part);
(c) use its reasonable best efforts to promptly notify each Holder of any such Registrable Securities covered by such Registration Statement, at any time when the Prospectus relating thereto is required to be delivered under the Securities Act, of the Company’s becoming aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such Holder, use its reasonable best efforts to prepare and furnish to such Holder a reasonable number of copies of an amended or supplemental Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(d) use its reasonable best efforts to (i) list such Registrable Securities on any securities exchange on which other Securities of the Company are then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, and (ii) provide a transfer agent and registrar and CUSIP number for such Registrable Securities covered by such Registration Statement in conformity with not later than the requirements effective date of the Securities ActRegistration Statement;
(ve) use its reasonable best efforts to notify counsel for the Holders of Registrable Securities included in such Registration Statement, immediately, and confirm the notice in writing: (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the prospectus or any amendment to any prospectus shall have been filed; provided, however, that this clause (i) shall not apply to (A) an amendment or supplement relating solely to securities other than the Registrable Securities or (B) an amendment or supplement by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Proxy Statement on Schedule 14A, a Current Report on Form 8-K or a Registration Statement on Form 8-A or any amendments thereto filed with the SEC under the Exchange Act and incorporated or deemed to be incorporated by reference into a Registration Statement or Prospectus; (ii) of the receipt of any comments from the SEC; (iii) of any request of the SEC to amend the Registration Statement or amend or supplement the prospectus or for additional information; and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Registration Statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(f) take every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(g) use its reasonable best efforts to register and qualify (unless an exemption from the registration or qualify such qualification exists) the Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions as each selling Stockholder shall be reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as requested by the applicable Registration Statement may be required to be kept effective under this Agreement (provided Holders; provided, however, that the Company will shall not be required in connection therewith or as a condition thereof to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 2.4(g), (Bii) subject itself to general taxation in any such jurisdiction where it would not otherwise be so subject but for this Section 2.4(g), or (Ciii) file a general consent to general service of process in any such jurisdiction)jurisdictions;
(vih) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use its reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers cooperate with the Holders of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares Securities covered by the Registration Statement to facilitate the timely preparation and delivery of certificates (including making members of senior management of the Company available at reasonable times and places not bearing any restrictive legends) representing Securities to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and be sold under the Registration Statement, Prospectus and documents, if any, incorporated or deemed enable such Securities to be incorporated by reference therein, in each case, such denominations and registered in form, substance and scope such names as are customarily made by issuers to underwriters in underwritten offerings, the Holders may request; and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixi) use its reasonable best efforts to cause all such Registrable Shares to be listed on cooperate with each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale seller of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing their respective counsel in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is filings required to discontinue disposition of such securitiesbe made with FINRA.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lineage, Inc.), Registration Rights Agreement (Lineage, Inc.), Registration Rights Agreement (Lineage, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect the registration of any Registrable Securities under the Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that that, a reasonable period of time before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) (i) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
, or (ii) use reasonable best efforts if any holder of Registrable Securities covered by such Registration Statement reasonably objects, in writing, on a timely basis, to the information pertaining to such holder (other than any information provided by such holder) set forth in such Registration Statement or Prospectus.
(b) prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Coordination Committee, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and the Coordination Committee may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter);
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(iii), 6(c)(iv) or 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration or Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement (or, if such Registration is an S-3 Shelf RegistrationInitial Public Offering, enter use its best efforts to cause such Registrable Securities to be so listed within ten (10) business days following the effectiveness of such Registration Statement);
(o) Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi)6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, each Stockholder will immediately discontinue or as and to the extent required thereunder;
(and direct any other Persons making offers and sales p) make available for inspection by a representative of the selling holders of Registrable Shares to immediately discontinue) offers and sales Securities, any underwriter participating in any such disposition of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Securi
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Laureate Education, Inc.), Registration Rights Agreement (Laureate Education, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the registration obligations of the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretounder Section 2 hereof or Exhibit A, the Company shall, :
(a) Prepare and file as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file reasonably practicable with the SEC a Registration Statement or Registration Statements on Form S-3 or another appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders in accordance with respect the intended method or methods of distribution thereof (including the Spin Distribution), and use its commercially reasonable efforts to such Registrable Shares and cause each such Registration Statement to become effective (unless it is automatically and remain effective upon filing), as provided herein; provided, however, that before filing a any Registration Statement Statement, Prospectus or Prospectus Disclosure Package or any amendments or supplements thereto and, to with the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationSEC, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel Holders and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed and within seven (including exhibits thereto), which documents will be subject to 7) days of the reasonable review and comment delivery of such counsel, and copies in good faith consider reflecting in each such other documents reasonably requested by such counsel, including any comment letter from document when so filed with the SEC and proposed response thereto, andall comments, if requested by such counselany, provide such counsel reasonable opportunity to participate in that the preparation of such Registration Statement Holders and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters, if any, shall reasonably objectpropose; provided, in writing, on a timely basis, unlessthat the Company shall not be required to take any actions under this Section 3(a) that are, in the opinion of the Company’s counselcounsel experienced in such matters, such filing is necessary to comply with in violation of applicable law;. The Company shall promptly provide copies of any written correspondence from the SEC with respect to a Prospectus, prospectus supplement, Registration Statement or post-effective amendment to the Holders and the underwriters, if any.
(iib) use reasonable best efforts Subject to its ability to issue a Deferral Notice, prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective for the applicable 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) under the Securities Act; and use its commercially reasonable efforts to comply with the applicable requirements provisions of the Securities Act and applicable to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act it with respect to the disposition of all the Shares securities covered by such Registration Statement during such period the applicable Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;Statement as so amended or such Prospectus as so supplemented.
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto As promptly as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which practicable give notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares Notice Holders and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries(i) when any Prospectus, and the prospectus supplement, Registration Statement, Prospectus and documents, if any, incorporated Disclosure Package or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the a Registration Statement has been filed with the SEC and, with respect to the a Registration Statement or any post-effective amendment, when the same has become been declared effective;
, (2ii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the any Registration Statement or the related Prospectus or for any additional information regarding such Stockholder;
information, (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of any Registration Statement or the Registration Statement;
initiation or threatening of any proceedings for that purpose, (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale under in any jurisdiction or the applicable securities initiation or blue sky laws threatening of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii)proceeding for such purpose, (viiiv) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event 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 5.07(a)(vi3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide prompt notice to the Notice Holders and the underwriters, if any, of the withdrawal of any such order.
(e) As promptly as practicable, furnish to each Stockholder Notice Holder and the underwriters, if any, without charge, at least one conformed copy of the Registration Statement and any amendment thereto, excluding all schedules, exhibits and all documents incorporated or deemed to be incorporated therein by reference (unless requested in writing by such Notice Holder).
(f) During the Effectiveness Period, deliver to each Notice Holder and the underwriters, if any, in connection with any sale of Registrable Securities pursuant to such Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; to provide a “reasonable number” of copies thereof to the New York Stock Exchange as contemplated by Rule 153 under the Securities Act; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder and the underwriters, if any, in connection with any offering and sale of the Registrable Securities covered by such 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 such Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate with the Notice Holders and the underwriters, if any, in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any underwriter or Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with the offer and sale of Registrable Securities pursuant to such registration or 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 immediately discontinue 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 Registration Statement or the initiation of proceedings with respect to such Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which the financial statements included in such Registration Statement become ineligible for inclusion therein, such Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any related Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development that, in the good faith judgment of the Company makes it necessary or advisable to suspend the availability of such Registration Statement and direct the related Prospectus for a discrete period of time because not to do so would be detrimental to the Company and its subsidiaries:
(i) Subject to the Deferral Period, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other Persons making offers required document that would be incorporated by reference into such Registration Statement and sales Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Shares Securities being sold thereunder, and, in the case of a post-effective amendment to immediately discontinuea Registration Statement, use its commercially reasonable efforts to cause it to be declared effective as promptly as is practicable, and
(ii) offers give notice to the Notice Holders and sales the underwriters, if any, that the availability of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Shares Securities pursuant to any such Registration Statement (other than those pursuant to a plan that is in effect prior to until such time and that complies with Rule 10b5-1 Notice Holder’s receipt of copies of the Exchange Actsupplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company shall use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) or (B) above, as promptly as is practicable, and is furnished with a supplemented or amended Prospectus (y) in the case of clause (C) above, as contemplated by Section 5.07(a)(vi)soon as practicable after, and, if so directed by in the good faith judgment of the Company, each Stockholder will deliver public disclosure of such pending corporate development would no longer be detrimental to the interests of the Company. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of one or more Registration Statements or any related Prospectuses for a period (the “Deferral Period”) that shall not exceed 30 days in any three-month period or 90 days in any 12-month period.
(i) If requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any underwriter, and any broker-dealers, attorneys and accountants retained by such Notice Holders, and any attorneys or other agents retained by an underwriter or a broker-dealer engaged by such Notice Holders, all copiesrelevant financial and other records and pertinent corporate documents and properties of the Company and its subsidiaries, other than permanent file copies then and cause the appropriate officers, directors and employees of the Company and its subsidiaries to make reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representative for the Notice Holders and the underwriters, if any, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each Stockholder’s possessioncase as is customary for similar “due diligence” examinations; provided, of that such Persons shall first hereby agree with the Prospectus covering such Registrable Shares current Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of receipt delivery of such notice, provided, however, that information shall be kept confidential by such Persons and shall be used solely for the time periods purposes of exercising rights under this Article V Agreement, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities (in which case the Company shall be provided notice prior to such disclosure so that it may seek a protective order), (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with respect the filing of any Registration Statement or the use of any prospectus referred to in this Agreement), (iii) such information becomes generally available to the length of time that the effectiveness public other than as a result of a Registration Statement must be maintained shall automatically be extended disclosure or failure to safeguard by any such Person or (iv) such information becomes available to any such Person from a source other than the amount of time Company and such source is not bound by a Stockholder is required to discontinue disposition of such securitiesconfidentiality agreement.
(dj) The Company may prepare Comply with all applicable rules and deliver an issuer free-writing prospectus regulations of the SEC and make generally available to its securityholders earning statements (as such term is defined in which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 405 158 thereunder (or any similar rule promulgated under the Securities Act) in lieu for a 12-month period commencing on the first day of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure the first fiscal quarter of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or commencing after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing effective date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement, which statements shall be made available no later than 45 days after the end of the 12-month period or 90 days if the 12-month period coincides with a fiscal year of the Company.
(k) Cooperate with each Notice Holder and the underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be 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) Use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which securities of the same class and series issued by the Company are then listed, provided that the applicable listing requirements are satisfied.
(m) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. or the New York Stock Exchange, Inc.
(n) With respect to each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) under the Securities Act) such Free Writing Prospectus or other materials without the prior written consent of the Holders of the Registrable Securities covered by such registration statement, which Free Writing Prospectuses or other materials shall be subject to the review of counsel to such Holders.
(o) Make all required filings of all Free Writing Prospectuses with the SEC.
(p) Enter into and perform its obligations under such customary agreements (including an underwriting agreement in customary form), which may include indemnification provisions in favor of underwriters and other persons in addition to, or in substitution for the provisions of Section 6 of the Agreement, and take such other actions as sellers of a majority of shares of such Registrable Securities, or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities.
(q) Obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or agent, an opinion or opinions from counsel for the Company in customary for
Appears in 3 contracts
Sources: Registration Rights Agreement (Deerfield Capital Corp.), Registration Rights Agreement (Triarc Companies Inc), Registration Rights Agreement (Deerfield Triarc Capital Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof (including a Partner Distribution), and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1 or 2.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Holders’ Representative, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the existence of any fact of which the Company becomes aware that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 2.4, hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters underwriter(s) and (v) deliver such documents and certificates as may be reasonably requested by the Holders of any Underwritten Offeringa majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having Cause its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant officers to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failuresupport the marketing of the Registrable Securities covered by the Registration Statement (including, shall not be a breach of this Agreementwithout limitation, by participation in “road shows”) taking into account the Company’s business needs.
(fr) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Otherwise us
Appears in 3 contracts
Sources: Registration Rights Agreement (Moneygram International Inc), Registration Rights Agreement (Moneygram International Inc), Registration Rights Agreement (Moneygram International Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company of joining in a request that any Registrable Shares be registered pursuant is required to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical effect the registration of any Registrable Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Article V, the registration and the Agreement (including any sale of such Registrable Shares referred to in accordance with the intended methods of disposition thereof, and, pursuant theretoany Take-Down Notice), the Company shallshall as promptly as reasonably practicable, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, Agreement:
(i) use reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Section 5.03; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a such Registration Statement or Prospectus or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice, the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriter(s), and such other documents reasonably requested by any such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered Underwritten Offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementthis Section 5.03;
(iii) use reasonable best efforts if requested by the lead managing underwriter(s), promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to obtain permit the withdrawal intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any order suspending the effectiveness of any Registration Statementactions under this Section 5.03(a)(iii) that are not, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesopinion of counsel for the Company, in compliance with applicable law;
(iv) deliverfurnish to the Selling Holders and each underwriter, without chargeif any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders and underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holders;
(v) use reasonable best efforts to register or qualify cause such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required Securities to be kept effective under this Agreement (provided that listed on each securities exchange on which similar securities issued by the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)are then listed;
(vi) notify each selling Stockholder use reasonable best efforts to provide and each distributor cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(vii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to such Stockholder, Registration Statement or the prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(viii) use reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, and, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the request of such Stockholderearliest reasonable practicable date, except that the Company shall use reasonable best efforts not for any such purpose be required to prepare(A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) be obligated to be so qualified, as soon as practical, (B) subject itself to taxation in any such jurisdiction or (C) file a supplement or amendment general consent to service of process in any such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)jurisdiction;
(viiix) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use Securities and their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm respective counsel in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares filings required to be listed on each primary securities exchange (if any) on which securities of made with the same class issued by the Company are then listedFinancial Industry Regulatory Authority, Inc.;
(x) provide a transfer agent and registrar for all prior to any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the Selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided that the Company will not later than the effective date of such Registration Statement and, be required to (A) qualify generally to do business as a reasonable time before foreign corporation or as a dealer in securities in any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates jurisdiction wherein it would not but for the Registrable Shares requirements of this clause (x) be obligated to be soldso qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xi) make generally available use reasonable efforts to Stockholders cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a consolidated earnings statement (transferee pursuant to the Registration Statements, which need not certificates or book-entry securities shall be audited) for a period free, to the extent permitted by the Note and applicable law, of 12 months beginning all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as soon as reasonably practicable after required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the end transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such period, which earnings statement shall satisfy shares of Registrable Securities under the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunderRegistration Statement; and
(xii) promptly notify agrees with each selling Stockholder and the managing underwriters holder of Registrable Securities that, in connection with any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus Offering or any Prospectus supplement or any post-effective amendment other resale pursuant to the Registration Statement has been filed andin accordance with the terms hereof, with respect it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viiCompany), (viii) including using reasonable efforts to procure customary legal opinions and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountauditor “comfort” letters.
(b) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 5.03(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification Registrable Securities are to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article VAgreement, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereofthereof (subject to the terms hereof), and, and pursuant thereto, thereto the Company shall, as soon as practical as provided herein:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Shares Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective within ninety (unless it is automatically effective upon filing), provided, however, that before 90) days of the initial filing thereof. Before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall furnish or otherwise make available to one firm of counsel selected by the holders of a majority of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s), if any, Statement copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will shall be subject to the reasonable review and comment of such counsel, and counsel within three (3) business days of receipt of such other documents reasonably requested by such counsel; provided, including however, that in no event shall the Company be required to provide counsel for such holders any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity Exchange Act Document prior to participate its filing other than in connection with an Underwritten Offering;
(b) in the preparation case of a Demand Registration, use its commercially reasonable efforts to prepare and file with the Commission a Registration Statement with respect to such Registrable Securities within sixty (60) days of its receipt of a Demand Notice and use its commercially reasonable efforts to cause such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation become effective within the meaning ninety (90) days of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsinitial filing thereof. The Company shall not file any such Before filing a Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents thatthereto, upon filing, would be incorporated or deemed incorporated the Company shall furnish to one firm of counsel selected by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel within three (or their 3) business days of receipt of such documents by such counsel) or ; provided, however, that in no event shall the managing underwriter(s), if any, shall reasonably object, Company be required to provide counsel for such holders any Exchange Act Document prior to its filing other than in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply connection with applicable lawan Underwritten Offering;
(iic) use reasonable best efforts to notify each Eligible Holder of Registrable Securities of the effectiveness of each Registration Statement filed hereunder and prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant a period required hereunderof not less than one-hundred twenty (120) days (or, but no longer than is necessary to complete the distribution of the Shares covered by if sooner, until all Registrable Securities have been sold under such Registration Statement) (or, in the case of a Shelf Registration, a period ending on the date on which all Registrable Securities have been sold pursuant to the Shelf Registration) and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration StatementStatement (in each case subject to any Suspension Period);
(iiid) use reasonable best efforts furnish to obtain the withdrawal each seller of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, Securities such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus) and final Prospectus and any supplement thereto such other documents as each selling Stockholder such seller may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered Securities owned by such Registration Statement in conformity with the requirements of the Securities Actseller;
(ve) use its commercially reasonable best efforts (i) to register or qualify such Registrable Shares Securities under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder any seller reasonably requests and continue requests, (ii) to keep such registration or qualification in effect for so long as such Registration Statement remains in effect, and (iii) to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions for as long as of the applicable Registration Statement may be required to be kept effective under this Agreement Registrable Securities owned by such seller (provided that the Company will shall not be required to (Ax) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v)subsection, (By) subject itself to taxation in any such jurisdiction or (Cz) consent to general service of process in any such jurisdiction);
(vif) notify each selling Stockholder and each distributor seller of such Registrable Shares identified by such Stockholder, Securities and any managing underwriter (i) at any time when a Prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributor(A) upon discovery that, of or upon the occurrence happening of any event as a result of which which, the Prospectus included in such Registration Statement contains includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such Stockholderseller and subject to any Suspension Period, the Company shall use reasonable best efforts to prepare, as soon as practical, promptly prepare a supplement or amendment to such Prospectus and file it with the Commission so that, as thereafter delivered to any prospective the purchasers of such Registrable SharesSecurities, such Prospectus as so amended or supplemented shall not contain include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliatesmisleading, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) Company becomes aware of any request by the SEC Commission or any other Government Entity Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus covering Registrable Securities or for any additional information regarding such Stockholder;
relating thereto, (3C) as soon as the Company becomes aware of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance or threatened issuance by the SEC Commission of any stop order suspending or threatening to suspend the effectiveness of a Registration Statement covering the Registration Statement;
Registrable Securities or (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Shares Securities for sale under in any jurisdiction, or the applicable securities initiation or blue sky laws threatening of any jurisdictionproceeding for such purpose; andand (ii) when each Registration Statement or any amendment thereto has been filed with the Commission and when each Registration Statement or any post-effective amendment thereto has become effective;
(5g) use its commercially reasonable efforts to cause all such Registrable Securities (i) if at any time either the Common Stock or New Notes are then listed on a securities exchange or included for quotation in a recognized trading market, to continue to be so listed or included, and (ii) to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of the Registrable Securities;
(h) provide and cause to be maintained a transfer agent and registrar chosen by the Company has reason to believe for all such Registrable Securities from and after the effective date of such Registration Statement;
(i) enter into such customary agreements (including underwriting agreements in customary form, provided that the representations Company’s indemnity and warranties of the Company contained contribution obligations (and related procedures) to any Person in any underwriting or similar agreement (including any underwriting agreement) contemplated by this Section 5.07 cease shall be substantially equivalent to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viiiSection 7) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by take all such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities other actions as the Company may from time to time holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in writing order to expedite or facilitate the disposition of such Registrable Securities;
(j) for a reasonable period prior to the filing of any Registration Statement or a Shelf Takedown, as applicable, pursuant to this Agreement, make available for review by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement, one firm of counsel for all of the Eligible Holders and one firm of counsel representing any underwriters and any one firm of accountants retained by either the Eligible Holders or any underwriters, copies of all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply copies of all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Statement; provided, however, that any information that is designated in writing by the Company, in good faith, as confidential at the time periods under this Article V of delivery of such information shall be kept confidential by the requesting party or any such seller of Registrable Securities, underwriter, attorney, accountant or other agent, unless such disclosure is made in connection with respect a court proceeding or required by law, or such information becomes available to the length of time that the effectiveness public generally or through a third party (other than as a result of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition breach of such securities.confidentiality provisions) without an accompanying obligation of confidentiality;
(dk) The Company may prepare comply with all applicable rules and deliver an issuer free-writing prospectus (regulations of the Commission, and make available to its security holders, as such term is defined in Rule 405 under soon as reasonably practicable, after the Securities Act) in lieu effective date of any supplement to a ProspectusRegistration Statement, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of an earnings statement covering the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal at least twelve months beginning with the first day of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or first full calendar quarter after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing 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;
(l) permit any Eligible Holder of Registrable Securities, any underwriter participating in any disposition pursuant to a Registration Statement, attorneys from one firm of counsel for all of the Eligible Holders and one firm of counsel representing any underwriters, and accountants from one firm of accountants retained by either the Eligible Holders of Registrable Securities or any underwriters, to participate (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such Registration Statement and any Prospectus supplements relating to a Shelf Takedown, if applicable, and to require the insertion therein of information regarding the sellers, the underwriters or the plan of disposition of the Registrable Securities, furnished to the Company in writing, which in the reasonable judgment of such Stockholder holders or underwriters and their respective counsel should be included;
(m) in the event of the issuance or threatened issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Securities included in such Registration Statement for sale in any jurisdiction, use its commercially reasonable efforts promptly to (i) prevent the issuance of any such stop order, and in the event of such issuance, to obtain the withdrawal of such order and (ii) obtain the withdrawal of any order suspending or preventing the use of any related Prospectus or suspending qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction at the earliest practicable date;
(n) obtain and furnish to each such holder of Registrable Securities a copy of a signed counterpart of (i) a cold comfort letter from the Company’s independent public accountants and (ii) a legal opinion of counsel to the Company addressed to such holders of Registrable Securities, in each case in customary form and covering such matters of the type customarily covered by such letters as the managing underwriter and/or holders of a majority of the Registrable Securities being sold reasonably request;
(o) promptly notify in writing the Eligible Holders, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold, (i) when such Registration Statement or the Prospectus included therein or any Prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to any such Registration Statement or any post-effective amendment, when the same has become effective and (ii) of any written comments by the Commission and by the blue sky or securities commissioner or regulator of any state with respect thereto;
(p) (i) prepare and file with the Commission such amendments and supplements to each Registration Statement as may be necessary to comply with the provisions of the Securities Act, including post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective (subject to any Suspension Period) for the applicable time period required hereunder and if applicable, file any Registration Statements pursuant to Rule 462(b) under the Securities Act; (ii) cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; (iv) provide additional information related to each Registration Statement as requested by the Commission or any Federal or state governmental authority; and (v) if the holders of a majority of the Registrable Securities participating in a Demand Registration so request, request acceleration of effectiveness from the Commission of the Demand Registration and any post-effective amendments thereto, if any are filed; provided, however, that at the time of such request, the Company does not in good faith believe that it is necessary to amend further the Registration Statement in order to comply with the provisions of this subparagraph;
(q) cooperate with each Eligible Holder and each underwriter participating in the disposition of such Registrable Securities and underwriters’ counsel in connection with any filings required to be made with FINRA;
(r) use its commercially reasonable efforts to assist an Eligible Holder in facilitating private sales of Registrable Securities by, among other things, providing officers’ certificates and other customary closing documents reasonably requested by such Eligible Holder (so long as the Company and required believes that such private sales comply with the Securities Act); and
(s) use its reasonable best efforts to achieve effectiveness take all other actions reasonably necessary to effect the registration of such Registration Statementthe Registrable Securities contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (DEX ONE Corp), Registration Rights Agreement (R H Donnelley Corp)
Registration Procedures. (a) Whenever a Stockholder requests In connection with the obligations of the Company to effect or provides notification cause the registration of any Registrable Securities pursuant to the Company terms and conditions of joining in a request that any Registrable Shares be registered pursuant to this Article VAgreement, the Company shall use reasonable its best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereofdistribution thereof as quickly as practicable, and, pursuant thereto, the Company shall, as soon as practical as provided hereinand in connection therewith:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to The Company shall prepare and file with the SEC Commission a Registration Statement on the appropriate form under the Securities Act, which Registration Statement shall comply as to form in all material respects with respect the requirements of the applicable form and include all financial statements required by the Commission to such Registrable Shares be filed therewith, and use its best efforts to cause such Registration Statement to become effective (unless it is automatically and remain effective upon filing), in accordance with the provisions of this Agreement; provided, howeverhowever that, that before at least ten Business Days prior to filing a Registration Statement or Prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicable, including documents that would be incorporated by reference or deemed to be incorporated by reference in a after the initial filing of the Registration Statement filed pursuant to a request for a Demand RegistrationStatement, the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel Holders' Counsel and the managing underwriter(s)underwriters, if any, draft copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review of Holders' Counsel and comment of such counselthe underwriters, if any, and such other documents reasonably requested the Company will not, unless required by such counsellaw or this Agreement, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, amendment thereto or any amendments Prospectus or supplements any supplement thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of Holders holding a majority in interest of the Registrable Shares Securities covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters with respect to such Securities, if any, shall reasonably object; provided, in writinghowever, on a timely basis, unless, that any such objection to the filing of any Registration Statement or amendment thereto or any Prospectus or supplement thereto shall be made by written notice (the "Objection Notice") delivered to the Company no later than ten Business Days after the party or parties asserting such objection (the "Objecting Party") receives draft copies of the documents that the Company proposes to file. The Objection Notice shall set forth the objections and the specific areas in the opinion draft documents where such objections arise. The Company shall have five Business Days after receipt of the Company’s counselObjection Notice to correct such deficiencies to the satisfaction of the Objecting Party, such filing is necessary to comply with applicable law;
(ii) and will notify each Holder of any stop order issued or threatened by the Commission in connection therewith and shall use reasonable its best efforts to prevent the entry of such stop order or, if entered, to have such stop order withdrawn at the earliest possible moment.
(b) The Company shall promptly prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for as long as the relevant period Company is required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by keep such Registration StatementStatement effective pursuant to the terms hereof; shall cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and to shall comply with the applicable requirements provisions of the Securities Act applicable to it with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during such the applicable period in accordance with the intended methods of disposition by the Holders set forth in such Registration StatementStatement or amendment thereto or such Prospectus or supplement thereto;
(iiic) use reasonable best efforts The Company shall promptly furnish to obtain any Holder and the withdrawal of any order suspending the effectiveness of any Registration Statementunderwriters, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverif any, without charge, such number of conformed copies of each Registration Statement and any post-effective amendment thereto and such number of copies of the Prospectus (including each preliminary and final Prospectus Prospectus) and any supplement thereto amendments or supplements thereto, any documents incorporated by reference therein and such other documents as each selling Stockholder any such Holder or underwriter may reasonably reasonable request in order to facilitate the public sale or other disposition of the Registrable Shares of each selling Stockholder covered Securities being sold by such Holder.
(d) The Company shall, on or prior to the date on which a Registration Statement in conformity with the requirements of the Securities Act;
is declared effective, (vi) use reasonable its best efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or "blue sky" laws of each of the 50 states of the United States (or such jurisdictions as any Holder, Holders' counsel or underwriter may request) or obtain appropriate exemptions therefrom; (ii) do any and all other acts and things which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Shares under Securities in accordance with their intended method of distribution thereof; (iii) use its best efforts to keep each such other state securities or "blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such sky" registration or qualification (or exemption therefrom) effective during the period in effect which the Company is required to keep the Registration Statement effective; and (iv) do any and all other acts or things which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to complete the disposition in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided of such Registrable Securities in accordance with their intended method of distribution thereof; provided, however, that the Company will shall not be required to (A) to qualify generally to do business in any jurisdiction where it would not otherwise be required to so qualify but for this subparagraph (v), Section 5(d) or (B) subject itself to taxation file any general consent to service of process.
(e) The Company shall 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 as may be necessary by virtue of the business and operations of the Company to enable the Holders to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof.
(f) The Company shall promptly notify each Holder, Holders' Counsel and any underwriter and (if requested by any such Person) confirm such notice in writing, (i) when a Registration Statement or a Prospectus or any post-effective amendment or any Prospectus supplement has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any state securities authority for amendments and supplements to a Registration Statement and Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any order suspending the registration or qualification or exemption from registration or qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, (v) if, between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering of such jurisdiction or (C) consent Registrable Securities cease to general service of process be true and correct in any such jurisdiction);
all material respects, and (vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as which makes any statement of a result material fact made in a Registration Statement or related Prospectus untrue or which requires the making of which the Prospectus included any changes in such Registration Statement contains an or Prospectus so that such Registration Statement or Prospectus will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and, as promptly as practicable thereafter, prepare and file an amendment to such Registration Statement with the Commission and furnish to the Holders and any underwriter a supplement or amendment to such Prospectus so that, as thereafter deliverable to the purchasers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company shall make generally available to the Holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 30 days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company shall promptly use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and, if any such order suspending the effectiveness of a Registration Statement is issued, shall promptly use its best efforts to obtain the withdrawal of such order at the request earliest possible moment.
(i) The Company shall, if requested by the managing underwriter or underwriters, if any, Holders' Counsel, or any Holder promptly incorporate in a Prospectus supplement or post-effective amendment such information as such managing underwriter or underwriters or Holder or Holders' Counsel requests to be included therein, including, without limitation, with respect to the Registrable Securities being sold by such Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and any other terms of an underwritten offering of the Registrable Securities to be sold in such Stockholderoffering, and the Company shall use reasonable best efforts to preparepromptly make all required filings of such Prospectus supplement or post-effective amendment.
(j) The Company shall, as soon promptly as practicalpracticable after the filing with the Commission of any document which is incorporated by reference into a Registration Statement (in the form in which it was incorporated), deliver a supplement copy of each such document to each of the Holders and to Holders' Counsel.
(k) The Company shall cooperate with the Holders and the managing underwriter or amendment underwriters, if any, to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing Registrable Securities sold under a Registration Statement to the purchasers thereof, and enable such Prospectus so thatRegistrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, as thereafter delivered if any, or such Holders may request and keep available and make available to any prospective purchasers the Company's transfer agent prior to the effectiveness of such Registrable Shares, such Prospectus shall not contain an untrue statement of Registration Statement a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence supply of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);certificates.
(viil) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, The Company shall enter into such customary agreements (including, if applicable, an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), in customary form) and take all such other customary and reasonable actions as the managing Holders or the underwriters of such offering retained by the Holders participating in an underwritten public offering, if any, may request in order to expedite or facilitate the disposition of such Registrable SharesSecurities (the Holders may, includingat their option, causing its officers to use their reasonable best efforts to support the marketing require that any or all of the Registrable Shares covered by the Registration Statement (including making members of senior management representations, warranties and covenants of the Company available at reasonable times to or for the benefit of any underwriters also be made to and places to participate in “road-shows” that for the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business benefit of the Holders).
(m) The Company and its material Subsidiariesshall promptly make available to each Holder, and the any underwriter participating in any disposition of Registrable Securities pursuant to a Registration Statement, Prospectus and documentsany attorney, if anyaccountant or other agent or representative retained by any such Holder or underwriter (collectively, incorporated or deemed to be incorporated by reference thereinthe "Inspectors"), in each case, in form, substance all financial and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwritersother records, pertinent corporate documents and financial and other records properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers 's officers, directors and employees to supply all information reasonably requested by any such managing underwriters or law firm or accounting firm Inspector in connection with such offering, Registration Statement.
(Cn) make the Company’s Auditor available for any The Company shall furnish to each Holder of Registrable Securities included in such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith offering and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriter, if any, and counsels a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion or opinions of counsel to the selling holders Company, and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering matters of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters type customarily covered in by opinions requested in underwritten offerings and such other matters or comfort letters, as the case may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;be.
(ixo) The Company shall use reasonable its best efforts to cause all such the Registrable Shares Securities included in a Registration Statement (if the Company and the Registrable Securities so qualify) (i) to be listed on each primary national securities exchange (exchange, if any) , on which similar securities of the same class issued by the Company are then listed;, or (ii) if similar securities of the Company are not then listed, to be authorized for quotation or listing, as applicable, on the New York Stock Exchange or The Nasdaq Stock Market, Inc.'s ("Nasdaq") National Market or Small-Cap Market.
(xp) The Company shall provide a transfer agent and registrar CUSIP number for all such Registrable Shares Securities covered by a Registration Statement not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale Statement.
(q) The Company shall cooperate with each Holder and each underwriter participating in the disposition of Registrable Shares Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. ("NASD").
(r) The Company shall, during the period when the Prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(s) The Company shall appoint or maintain a transfer agent and registrar for all Registrable Securities covered by a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need Statement not be audited) for a period of 12 months beginning after later than the effective date of such Registration Statement.
(t) In connection with an underwritten offering, the Registration Statement as soon as Company shall participate, to the extent reasonably practicable after requested by the end managing underwriter for the offering or the Holders, in customary efforts to sell the securities being offered, including without limitation, participating in "road shows."
(u) If a Holder proposes to sell a block of such periodRegistrable Securities with a value in excess of $1 million, which earnings statement the Company shall satisfy the requirements of an earning statement under Section 11(a) make members of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties management of the Company contained in any agreement (available for reasonable selling efforts, including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For senior management attendance at road shows, provided, however, that the avoidance of doubt, selling Holder or Holders shall reimburse the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices Company for its reasonable out-of-pocket expenses actually incurred at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution request of such securities as the Company may from time to time reasonably request in writing selling Holder or Holders in connection with such registrationselling efforts.
(cv) Each Stockholder agrees by having its Shares treated as If the Registrable Shares hereunder thatSecurities are of a class of securities that is listed on a national securities exchange, the Company shall file copies of any Prospectus with such exchange in compliance with Rule 153 under the Securities Act so that the Holders shall benefit from the prospectus delivery procedures described therein. In the case of a Shelf Registration Statement, each Holder, upon being advised in writing by receipt of any notice (a "Suspension Notice") from the Company of the occurrence happening of an any event of the kind described in Section 5(f)(vi), shall forthwith discontinue disposition of the Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the Shelf Registration Statement (other than those pursuant to a plan that is in effect prior to covering such time and that complies with Rule 10b5-1 Registrable Securities until such Holder's receipt of the Exchange Actcopies of the supplemented or amended Prospectus contemplated by Section 5(f) or until it such Holder is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.be
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement (Inter Act Systems Inc), Exchange and Registration Rights Agreement (Inter Act Systems Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon promptly as practical as provided hereinpracticable:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement (other than in connection with a Piggyback Registration initial filing) or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant but excluding any amendment or supplement solely to a request for a Demand Registrationadd or change selling stockholders named therein), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(ii) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant applicable period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(iii) Notify each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (1) when a Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (3) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(a)(xi) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (6) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiiiv) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ivv) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary then outstanding Registrable Securities being sold in connection with an Underwritten Offering, or the Stockholders participating in a Shelf Registration Statement, promptly include in a Prospectus or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders or Stockholders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 5(a)(v) that are not, in the opinion of the Company, in compliance with applicable law.
(vi) Furnish or make available to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter), and such other documents as the selling holders of Registrable Securities may reasonably request in connection with the distribution of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;Securities.
(vvii) Prior to any Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (A1) qualify generally to do business in any jurisdiction where it is not then so qualified or (2) take any action that would not otherwise be required subject it to qualify but for this subparagraph (v), (B) subject itself to general service of process or taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);where it is not then so subject.
(viviii) notify each Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Stockholder holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and each distributor the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(ix) Upon the occurrence of any event as contemplated by Section 5(a)(iii)(6) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use .
(x) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on The New York Stock Exchange or any other securities exchange on which shares of the particular class of Registrable Securities are at that time qualified or listed.
(xi) Enter into such agreements (including an underwriting agreement in form, scope and substance as soon as practicalis customary in Underwritten Offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, a supplement if any) to expedite or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers facilitate the disposition of such Registrable SharesSecurities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand RegistrationOffering, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making 1) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, underwriters with respect to the business of the Company and its material Subsidiariessubsidiaries, 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 offeringsUnderwritten Offerings, and, if true, confirm the same if and when requested;
, (viii2) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, underwriters and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewith, Securities and each of the underwriters 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, (3) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants or, if applicable, independent registered public accounting firm, of the Company that have or has certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with Underwritten Offerings, (4) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 7 hereof with respect to all parties to be indemnified pursuant to said Section and (5) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 5(a)(xiii)(1) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(xii) In connection with each Demand Registration and each Fully Marketed Underwritten Offering, cause there to occur Full Cooperation.
(xiii) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such records and other information provided under clauses (A) and (B) above shall be subject kept confidential by such Persons unless (1) disclosure of such information is required by court or administrative order, (2) disclosure of such information, in the opinion of counsel to such confidential treatment Person, is required by law, or (3) such information becomes generally available to the public other than as is customary a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (1) or (2) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which any market transactions in securities of the same class issued by the Company are then listed;or its subsidiaries in violation of law.
(xxiv) provide a transfer agent Otherwise comply in all material respects with all applicable rules and registrar for all such Registrable Shares not later than regulations under the effective date of such Registration Statement andSecurities Act, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally including making available to Stockholders a consolidated its security holders an earnings statement (which need not be audited) for a period of covering at least 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
thereunder (xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained similar provision then in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viiforce), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor seller of Registrable Shares Securities as to which any registration is being effected to furnish to the Company in writing such information required in connection with such registration regarding such Person seller and the distribution of such securities Registrable Securities as the Company may may, from time to time time, reasonably request in writing in connection with and the Company may exclude from such registrationregistration the Registrable Securities of any seller who unreasonably fails to furnish such information within a reasonable time after receiving such request.
(c) Each Stockholder holder of Registrable Securities agrees if such holder has Registrable Securities covered by having its Shares treated as Registrable Shares hereunder such Registration Statement that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event pursuant to of the kind described in Section 5.07(a)(vi5(a)(iii)(2), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi5(a)(iii)(3), and5(a)(iii)(4) or 5(a)(iii)(5) hereof, if so directed by the Company, each Stockholder such holder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to forthwith discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as Registrable Securities covered by such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Pros
Appears in 2 contracts
Sources: Registration Rights Agreement (Tumi Holdings, Inc.), Registration Rights Agreement (Tumi Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, make all required filings with FINRA and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to (including any free writing prospectuses under Rule 433 under the extent reasonably practicable, Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Demand Party, the Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (Statement, or their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;law;
(iib) use reasonable best efforts subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements to such each Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered by such period Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;Statement;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) subject itself to taxation in any such jurisdiction or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or the managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the 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 the Registration Statement relating to the Registrable Securities, use its reasonable best efforts to provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement (and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an Underwritten Offering in underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which each selling Stockholder participates pursuant the Common Stock is then listed, prior to a Demand Registrationthe effectiveness of such Registration Statement (or, a Piggyback Registration if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or an S-3 Shelf RegistrationNASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by selling Holders and the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any), and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares addressed to each selling Holder (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (1iv) when the Registration Statement, any pre-effective amendmentif an underwriting agreement is entered into, the Prospectus or any Prospectus supplement or any post-effective amendment same shall contain indemnification provisions and procedures substantially to the Registration Statement has been filed and, effect set forth in Section 5 hereof with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease all parties to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event indemnified pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing 5 except as otherwise agreed by the Company that the use of the Prospectus may be resumed Holders and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will (v) deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.documen
Appears in 2 contracts
Sources: Registration Rights Agreement (KAR Auction Services, Inc.), Investment Agreement (KAR Auction Services, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof in accordance with respect the intended method or methods of distribution thereof, and use its commercially reasonable efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsfiled. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(b) If such Registration Statement is a Shelf Registration Statement:
(i) Subject to any notice by the Company in accordance with this Section 6(b) of the existence of any fact or event of the kind described in Section 6(d)(vi), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of the Registrable Securities covered thereby during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15 (d) of the Exchange Act, in the case of clause (A) of this Section 6(b)(i), correcting any such misstatement or omission, and, in the case of either clause (A) or (B) of this Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter.
(ii) use Notwithstanding Section 6(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “Suspension Period”):
(A) if a majority of the Company’s board of directors, in good faith, determines that (1) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company, (2) after the advice of counsel, the sale of the shares of Common Stock covered by the Shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (3) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the SEC; or
(B) if a majority of the Company’s board of directors, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (1) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus, or (3) including in the Prospectus included in the Shelf Registration Statement any material information with respect to the plan of distribution not disclosed in the Shelf Registration Statement or any material change to such information. Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the Company shall give notice to each Demanding Qualified Holder with respect to such Shelf Registration Statement that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section 6(b). The Suspension Period shall not exceed 60 days in any 90-day period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable best efforts to prepare cause such post-effective amendment to be declared effective); provided, that Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period. The Company shall not be required to specify in the written notice to the Qualified Holders the nature of the event giving rise to the Suspension Period.
(c) Prepare and file with the SEC such amendments and supplements post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus used in connection therewith to be supplemented by any Prospectus supplement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(d) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension if the effectiveness of a Shelf Registration Statement during has been suspended pursuant to Section 6 (b)), (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such period purpose and (vi) of the happening of any event that makes any statement made in accordance with such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the intended methods making of disposition set forth any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that, in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiie) use Use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in the United States;jurisdiction.
(ivf) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary then-outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(f) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(g) Furnish to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one (1) conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(h) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vi) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vij) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(k) Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(l) Upon the occurrence of any event as contemplated by Section 6(d)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading .
(which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event m) Prior to the extent such information would constitute material non-public information);
(vii) in the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters relating to the ProspectusRegistrable Securities, provide a CUSIP number for the Registrable Securities.
(n) Provide and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed cause to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(bo) The Company may require each selling Stockholder and each distributor Use its commercially reasonable efforts to cause all shares of Registrable Shares as Securities covered by such Registration Statement to which any registration is being effected be authorized to furnish to be quoted on the Company information regarding Nasdaq Global Market or listed on another national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the Nasdaq Global Market or listed on such Person and the distribution of such securities exchange, as the Company case may from time to time reasonably request in writing in connection with such registrationbe.
(cp) Each Stockholder agrees by having its Shares treated Enter into such agreements (including an underwriting agreement in form, scope and substance as Registrable Shares hereunder that, upon being advised is customary in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (underwritten offerings) and direct any take all such other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder actions reasonably requested by the Company and required to achieve effectiveness holders of such Registration Statement.a majority of the Registrabl
Appears in 2 contracts
Sources: Registration Rights Agreement (Approach Resources Inc), Registration Rights Agreement (Approach Resources Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement and, if required by the Corporation’s transfer agent, cause an opinion of counsel to be delivered to such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the holder or an S-3 Shelf Registrationthe underwriter or managing underwriter, if any, of such Registrable Securities under the Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering Registrable Securities and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records the underwriters opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi)6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, each Stockholder will immediately discontinue or as and to the extent required thereunder;
(and direct any other Persons making offers and sales p) make available for inspection by a representative of the selling holders of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to Securities, any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.underwriter participa
Appears in 2 contracts
Sources: Registration Rights Agreement (Advanced Disposal Services, Inc.), Registration Rights Agreement (Advanced Disposal Services, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon as practical as provided hereinis reasonably practicable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the offer and sale of the Registrable Securities by the holders thereof in accordance with respect the intended method or methods of distribution thereof (including without limitation, a Partner Distribution), and use its commercially reasonable efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsfiled. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(b) If such Registration Statement is a Shelf Registration Statement:
(i) Subject to any notice by the Company in accordance with this Section 6(b) of the existence of any fact or event of the kind described in Section 6(d)(vi), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of the Registrable Securities covered thereby during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15 (d) of the Exchange Act, in the case of clause (A) of this Section 6(b)(i), correcting any such misstatement or omission, and, in the case of either clause (A) or (B) of this Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter.
(ii) use Notwithstanding Section 6(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “Suspension Period”):
(A) if a majority of the Company’s board of directors, in good faith, determines that (1) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company, (2) after the advice of counsel, the sale of the shares of Common Stock covered by the Shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (3) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the SEC; or
(B) if a majority of the Company’s board of directors, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (1) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus, or (3) including in the Prospectus included in the Shelf Registration Statement any material information with respect to the plan of distribution not disclosed in the Shelf Registration Statement or any material change to such information. Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the Company shall give notice to each Demanding Qualified Holder with respect to such Shelf Registration Statement that the availability of the Shelf Registration Statement is suspended and, upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section 6(b). The Suspension Period shall not exceed 90 days in any 120-day period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable best efforts to prepare cause such post-effective amendment to be declared effective); provided, that Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period. The Company shall not be required to specify in the written notice to the Qualified Holders the nature of the event giving rise to the Suspension Period.
(c) Prepare and file with the SEC such amendments and supplements post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus used in connection therewith to be supplemented by any Prospectus supplement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(d) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension if the effectiveness of a Shelf Registration Statement during has been suspended pursuant to Section 6 (b)), (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such period purpose and (vi) of the happening of any event that makes any statement made in accordance with such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the intended methods making of disposition set forth any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that, in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiie) use Use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in the United States;jurisdiction.
(ivf) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary then-outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(f) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(g) Furnish to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one (1) conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(h) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vi) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vij) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(k) Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(l) Upon the occurrence of any event as contemplated by Section 6(d)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading .
(which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event m) Prior to the extent such information would constitute material non-public information);
(vii) in the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters relating to the ProspectusRegistrable Securities, provide a CUSIP number for the Registrable Securities.
(n) Provide and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed cause to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(bo) The Company may require each selling Stockholder and each distributor Use its commercially reasonable efforts to cause all shares of Registrable Shares as Securities covered by such Registration Statement to which any registration is being effected be authorized to furnish to be quoted on the Company information regarding Nasdaq Global Market or listed on another national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the Nasdaq Global Market or listed on such Person and the distribution of such securities exchange, as the Company case may from time to time reasonably request in writing in connection with such registrationbe.
(cp) Each Stockholder agrees by having its Shares treated Enter into such agreements (including an underwriting agreement in form, scope and substance as Registrable Shares hereunder that, upon being advised is customary in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (underwritten offerings) and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company take all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.su
Appears in 2 contracts
Sources: Registration Rights Agreement (Armstrong Energy, Inc.), Registration Rights Agreement (Armstrong Energy, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification Subject to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article Vterms and conditions hereof, the Company Motient shall use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale disposition of such Registrable the Acquired Shares in accordance with the intended methods method of disposition thereof, and, and pursuant thereto, the Company shall, thereto Motient shall as soon expeditiously as practical as provided hereinpracticable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to promptly prepare and file with the SEC a the Resale Registration Statement with respect to such Registrable the Acquired Shares (and any amendments, including any post-effective amendments or supplements to the Resale Registration Statement and prospectus included therein Motient deems to be necessary) and use its commercially reasonable efforts to cause such the Resale Registration Statement to become effective (unless it is automatically effective upon filing), and to comply with the provisions of the Securities Act applicable to it; provided, however, that before filing a the Resale Registration Statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company Motient shall furnish or otherwise make available to counsel for the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, Holders copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counselfiled, including any comment letter from documents incorporated by reference in the SEC and proposed response thereto, Resale Registration Statement and, if requested by such counselthe Holders, the exhibits incorporated by reference so as to provide such the Holders and their counsel a reasonable opportunity to participate review and comment on such documents, and Motient (i) will make such changes and additions thereto as reasonably requested by counsel to the Holders prior to filing the Resale Registration Statement or amendment thereto or any prospectus or any supplement thereto and (ii) if any of the Holders is an underwriter or controlling person of Motient, will include therein material relating to the Holders or the plan of distribution for the Acquired Shares registered thereunder, furnished to Motient in writing, which, in the preparation reasonable judgment of the Holders, should be included;
(b) furnish to the Holders such number of copies of the Resale Registration Statement, each amendment and supplement thereto, the prospectus included in the Resale Registration Statement and each Prospectus included therein and such other opportunities documents as the Holders may reasonably request in order to conduct a reasonable investigation within facilitate the meaning disposition of the Securities ActAcquired Shares registered thereunder; provided, including reasonable access however, that Motient shall have no obligation to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders furnish copies of a majority final prospectus if the conditions of Rule 172(c) under the Registrable Shares covered Securities Act are satisfied by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawMotient;
(iic) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such the Resale Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with keep the applicable requirements of the Securities Act and to keep such Resale Registration Statement effective for the relevant time period required hereunder, but no longer than is necessary as specified in Section 1.1 in order to complete the distribution disposition of the Acquired Shares covered by such the Resale Registration Statement, Statement and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Acquired Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition thereof as set forth in such the Resale Registration Statement, including without limitation identification of the permitted transferees of the Holders;
(iiid) use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable the Acquired Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder the Holders reasonably requests request and continue such registration do any and all other acts and things which may be reasonably necessary or qualification in effect advisable to enable the Holders to consummate the disposition of the Acquired Shares in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will Motient shall not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v)subsection, (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction);
(vie) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholderthe Holders, at any time when a Prospectus prospectus relating thereto would is required to be required delivered under the Securities Act Act, (i) when the Resale Registration Statement or any post-effective amendment has become effective under the Securities Act, (ii) of any written request by the SEC for amendments or supplements to be delivered by such distributorthe Resale Registration Statement or prospectus, (iii) of the occurrence happening of any event as a result of which the Prospectus prospectus included in such the Resale Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (whereupon the Holders shall immediately cease any offers, sales or other distribution of Acquired Shares registered thereunder), and, subject to 1.3(c), Motient shall promptly prepare a supplement or amendment to such prospectus so that, as thereafter used by the Holders for the resale of Acquired Shares, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light and (iv) of the circumstances under which they were made, not misleading (which notice shall notify issuance of any stop order suspending the selling Stockholders only effectiveness of the occurrence Resale Registration Statement, or of such an event and shall provide no additional information regarding such event to any order suspending or preventing the extent such information would constitute material non-public information)use of any related prospectus or suspending the qualification of any of the Acquired Shares included in the Resale Registration Statement for sale or distribution in any jurisdiction;
(viif) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing event of the Registrable Shares covered by issuance of any stop order suspending the Registration Statement (including making members of senior management effectiveness of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Resale Registration Statement, Prospectus or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Acquired Shares included in the Resale Registration Statement for sale or distribution in any jurisdiction, Motient shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order and documentsshall prepare and file an amended or supplemented prospectus, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestedrequired;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(xg) provide a transfer agent and registrar for all such Registrable Acquired Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a the Resale Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xih) use its commercially reasonable efforts to cause the Acquired Shares covered by the Resale Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Holders to complete the disposition of the Acquired Shares covered by such registration statement and comply with the provisions of the Securities Act with respect to the disposition of all Acquired Shares covered by the Resale Registration Statement during such period in accordance with the intended methods of disposition by the Holders thereof set forth in the Resale Registration Statement;
(i) make available for inspection by the Holders, any underwriter participating in any disposition pursuant to the Resale Registration Statement on behalf of the Holders, and any attorney, accountant or other agent retained by the Holders or underwriter, all financial and other records, pertinent corporate documents and properties of Motient, and cause Motient’s officers, managers, employees and independent accountants to supply all information reasonably requested by Motient or any underwriter, attorney, accountant or agent in connection with the Resale Registration Statement; and
(j) make generally available to Stockholders its stockholders a consolidated earnings statement (which need not be audited) for a period of the 12 months beginning after the effective date of the Registration Statement such registration statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountAct.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Motient Corp), Registration Rights Agreement (Bce Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company of joining in a request that any Registrable Shares be registered Company's registration obligations pursuant to this Article VSection 3 or Section 4 hereof, the Company shall use reasonable best efforts effect such registrations to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, shall as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act that shall be available for the sale of the Registrable Securities by the holders thereof in accordance with respect the intended method or methods of distribution thereof, and use its best efforts to such Registrable Shares and cause each such Registration Statement to become effective (unless it is automatically and remain effective upon filing), provided, however, that before as provided herein. Before filing a any Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration StatementState- ment, their counsel the Special Counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselholders, the Special Counsel and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, andunderwriters, if requested by any; provided, however, that the Company shall not be required to deliver to such counsel, provide -------- ------- holders a copy of any such counsel reasonable opportunity to participate in the preparation document that has not been materially changed from a copy of such Registration Statement and each Prospectus included therein and document that was previously delivered to such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsholders. The Company Compa- ny shall not file any such Registration Statement or Prospectus, amendment thereto or any amendments Prospectus or supplements any supplement thereto (including such documents thatwhich, upon filing, would or would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) Statement, the Special Counsel or the managing underwriter(s)underwriter, if any, shall reasonably object, in writing, on a timely basis, basis unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post- effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary provided herein with respect to complete the distribution disposition of the Shares Registrable Securities covered thereby; cause the related Prospectus to be supplemented by such Registration Statementany required Pro- spectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such the applicable period in accordance accor- dance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;Statement as so amended or to such Prospectus as so supple- mented.
(c) Notify the selling holders of Registrable Securities, the Special Counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing:
(i) when a Prospectus or any Prospectus supplement or post- effective amendment has been filed, and, with respect to a Registration State- ment or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information (provided, that -------- the Company shall not be required to notify the holders or the Special Counsel of all "comment" letters or the Company's responses thereto to the holders or the Special Counsel unless such letters request information from or about the holders),
(iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC or any other Federal or state governmental authority of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose,
(iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by Section 6(n) (including any underwriting agreement) below cease to be true and correct,
(v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliver, without charge, initiation or threatening of any proceeding for such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);purpose,
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or that requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at
(vii) of the request of such Stockholder, the Company shall use Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prepareobtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriters, if any, or any holder of Registrable Securities being sold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holder reasonably agree should be included therein as may be required by applicable law, (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicalthe Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to any Registration Statement; provided, however, that the -------- ------- Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applica- ble law.
(f) Furnish to each selling holder of Registrable Securities, the Special Counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement or Statements and any post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated therein by reference or deemed incorporat- ed therein by reference and all exhibits, unless requested in writing by such holder, Special Counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, the Special Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may request; and the Company hereby consents to the use of such Prospectus or each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Secu- rities for offer and sale under the securities or Blue Sky laws of such juris- dictions within the United States as any seller or underwriter reasonably requests in writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, however, -------- ------- that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends; and enable such Registrable Securities to be registered in such names as the managing underwriters, if any, shall request at least two business days prior to any sale of Registrable Secu- rities to the underwriters.
(j) Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other govern- mental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder's busi- ness, in which case the Company will cooperate in all respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi) or 6(c)(vii) above, prepare a supplement or post-effective amendment to such each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesSecurities being sold thereunder, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading misleading.
(l) Use its best efforts to cause all Registrable Securities covered by such Registration Statement to be (i) listed on each securities ex- change, if any, on which notice shall notify similar securities issued by the selling Stockholders only Company are then listed, or (ii) authorized to be quoted on The Nasdaq Stock Market National Market if the securities so qualify; in each case, if requested by the holders of a majority of shares of the occurrence of Registrable Securities covered by such an event and shall provide no additional information regarding such event Registra- tion Statement or the managing underwriters, if any.
(m) Prior to the extent such information would constitute material non-public information);effective date of the Registration Statement relating to the Registrable Securities, (i) provide the transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the Registrable Securities.
(viin) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offer- ings) and take all such other customary and reasonable actions as in connection therewith (including those reasonably requested by the managing underwriters underwriters, if any, or the holders of such offering may request a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable SharesSecurities and in such connec- tion, including, causing its officers to use their reasonable best efforts to support whether or not an underwriting agreement is entered into and whether or not the marketing of the Registrable Shares covered by the Registration Statement registration is an underwritten registration:
(including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documentsdocuments incorporated by reference or deemed incor- porated by reference, 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 and, if true, confirm the same if and when requested;
(viiiii) in the case use its reasonable best efforts to obtain opinions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and counsel to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwrit- ers, if any, and counsels to the selling holders of a majority of the Registrable SharesSecurities being sold) addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel holders and underwriters; provided, however, that such records and other information provided under clauses (Aincluding without limitation the matters referred to in Section 6(n)(i) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsabove;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain "cold com- fort" letters and updates thereof from the independent certified public accountants of the same class issued Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or of any business acquired by the Company are then listed;
(x) provide a transfer agent for which financial statements and registrar for all such Registrable Shares not later than financial data is, or is required to be, included in the effective date of such Registration Statement andStatement), a reasonable time before any proposed sale addressed to each selling holder of Registrable Shares pursuant to a Registration StatementSecurities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, provide the transfer agent with printed certificates for the Registrable Shares if any, such letters to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date in customary form and covering matters of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereundertype customarily covered in "cold comfort" letters in connection with underwritten offerings; and
(xiiiv) promptly notify each selling Stockholder deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, the Special Counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in any the underwriting agreement (including any underwriting agreement) contemplated or other agreement entered into by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountCompany.
(bo) The Company may require each selling Stockholder and each distributor Make available for inspection by a representative of the holders of Registrable Shares as to which Securities being sold, any registration is being effected to furnish to underwriter participating in any disposition of Registrable Securities, if any, and any attorney or accoun- tant retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company information regarding such Person and its subsidiaries, and cause the distribution officers, directors and employees of such securities as the Company may from time and its subsidiaries to time supply all information reasonably request in writing requested by any such representative, underwriter, attorney or accountant in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Statement; provided, however, that any records, information or -------- ------- documents that are designated by the Company in writing as confidential at the time periods under this Article V with respect of delivery of such records, information or documents shall be kept confi- dential by such Persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities or (iii) disclosure of such records, information or documents, in the opinion of counsel to such Person, is otherwise required by law (including, without limitation, pursuant to the length requirements of time that the effectiveness Securities Act). Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of a Registration Statement must be maintained shall automatically be extended by the amount Company or its subsidiaries in ▇▇▇▇▇- tion of time a Stockholder is required to discontinue disposition of such securitieslaw.
(dp) The Company may prepare Comply with all applicable rules and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal regulations of the SEC and make generally available to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.its securityholders earning statements sa
Appears in 2 contracts
Sources: Registration Rights Agreement (Simons Stephen W), Registration Rights Agreement (Turner Paul H)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use commercially reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 6.1, Section 6.2 or Section 6.3, the Company shall use reasonable best efforts as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration statement to effect, as soon as practical as provided in this Article V, the effect such registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, distribution of such securities and thereafter use commercially reasonable efforts to cause such registration statement to become and remain effective pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions terms of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), VI; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of the Demand Shareholders which are including Registrable Shares covered by Securities in such Registration Statementregistration (“Selling Shareholders”), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Registrable Shares covered by such Registration Statement (or Requesting Shareholder(s), their counsel) counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawApplicable Law;
(ii) use reasonable best efforts to except in the case of a Shelf Registration Statement, prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article VI, and comply in all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain in the withdrawal case of any order suspending the effectiveness of any a Shelf Registration Statement, or prepare and file with the lifting of any suspension Commission such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the qualification or exemption from qualification Securities Act with respect to the disposition of any the Registrable Shares Securities subject thereto for sale in any jurisdiction in a period ending on the United Statesdate on which all the Registrable Securities held by the Demand Shareholders cease to be Registrable Securities;
(iv) deliverif requested by the lead managing underwriter(s), without chargeif any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6.7(a)(iv) that are not, in the opinion of counsel for the Company, in compliance with Applicable Law;
(v) furnish to the Selling Shareholders and each underwriter, if any, of the securities being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholders;
(vvi) use commercially reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholders and any underwriter of the securities being sold by such Selling Shareholders shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable such Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholders, 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 wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)vi) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in 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;
(viii) use commercially reasonable efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the case effective date of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, such registration statement;
(ix) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationagreement) in form, lockups, opinions scope and substance as is customary in underwritten offerings of counsel shares of Common Stock by the Company and comfort letters), and use its commercially reasonable efforts to take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if any underwriting agreement has been entered into, the Company’s officers same shall contain customary indemnification provisions and employees procedures with respect to supply information all parties to be indemnified pursuant to Section 6.10, except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder holders of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards a majority of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which Registrable Securities being sold, their counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders of the Registrable Sharesextent required thereunder;
(x) to such underwriters and each selling holder of Registrable Shares in connection therewithwith an Underwritten Offering, use commercially reasonable efforts to obtain for the underwriter(s) (A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel underwriters and underwriters(B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or Representative retained in connection with such offering by such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Representative, underwriter, attorney, agent or accountant in connection with such registration statement; provided, however, that such records and other the Company shall not be required to provide any information provided under clauses this Section 6.7(a)(xi) if (A) and the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) above shall be subject to such either (1) the Company has requested and been granted from the Commission confidential treatment as of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts sought in a court of competent jurisdiction or by another Governmental Entity, give notice to cause all such Registrable Shares the Company and allow the Company, at its expense, to be listed on each primary securities exchange (if any) on which securities undertake appropriate action seeking to prevent disclosure of the same class issued by the Company are then listedRecords deemed confidential;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) as promptly as practicable notify each selling Stockholder in writing the Selling Shareholders and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by this Section 5.07 6.7(a)(ix) cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) correct in any material respect; and (xiF) upon the happening of this Section 5.07(a) shall apply only any event that makes any statement made in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares registration statement or related prospectus or any document incorporated or deemed to be sold 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 offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company case of the occurrence registration statement, it will not contain any untrue statement of an event pursuant a material fact or omit to Section 5.07(a)(vi)state any material fact required to be stated therein or necessary to make the statements therein not misleading, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 in the case of the Exchange Act) until prospectus, it is advised will not contain any untrue statement of a material fact or omit to state any material fact necessary in writing by order to make the Company that the use statements therein, in light of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)circumstances under which they were made, not misleading, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time request of receipt any Selling Shareholder, promptly prepare and furnish to such Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus as may be necessary so that, as thereafter delivered to become the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or remain effective or omit to state a material fact required to be used because stated therein or necessary to make the statements therein, in light of unresolved SEC comments thereon the circumstances under which they were made, not misleading;
(xiii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or on exemption from qualification) of any documents incorporated therein by reference) despite of the Company’s good faith and Registrable Securities for sale in any jurisdiction at the earliest reasonable best efforts to resolve those comments or overcome such failurepracticable date, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Dateexcept that, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior subject to the Registration Termination Date, in which event the Company’s obligations under this requirements of Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering6.7(a)(vi).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a Registration Statement general consent to service of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or include such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(xv) cooperate with each seller of Registrable Shares in a Registration Statement unless it has received from Securities and each Stockholder underwriter or agent participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date disposition of the Registration Statement, information regarding such Stockholder reasonably requested by the Company Registrable Securities and their respective counsel in connection with any filings required to achieve effectiveness of such Registration Statement.be made with FINRA;
(xvi) have appropriate off
Appears in 2 contracts
Sources: Transaction Agreement (Plug Power Inc), Transaction Agreement (Plug Power Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VIII, the Company shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement with respect to or Registration Statements on such form which shall be available for the sale of the Registrable Securities covered thereby by the holders of such Registrable Shares Securities or the Company in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall furnish or otherwise make available to the holders of Demand Members, the Registrable Shares covered by such Registration Statementcounsel representing the Demand Members, their counsel selected in accordance with Section 3.12 (the “Demand Members’ Counsel”), and the managing or lead underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of the Demand Members’ Counsel (provided that any comments made on behalf of the Demand Members and the managing or lead underwriter(s), if any, are provided to the Company promptly upon receipt of the documents but in no event later than 5 calendar days after receipt of such counseldocuments by the Demand Members), and such other documents reasonably requested by such counselthe Demand Members’ Counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counselthe Demand Members’ Counsel, provide such counsel the Demand Members’ Counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein (including any Issuer Free Writing Prospectus related thereto) and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 3.1 or Section 3.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Demand Members, Demand Members’ Counsel, or the managing or lead underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counseljudgment, such filing is necessary to comply with applicable law;Law.
(ii) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be reasonably requested by the Demand Members or Demand Members’ Counsel, or necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement;, and as so supplemented to be filed pursuant to Rule 424 or Rule 433, as applicable (or any similar provisions then in force) under the Securities Act.
(iii) use reasonable best efforts Notify each selling holder of Registrable Securities and the managing or lead underwriter(s), if any, promptly (A) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to obtain a Registration Statement or any post-effective amendment, when the withdrawal same has become effective, (B) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (D) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 3.7(a)(xii) below) cease to be true and correct, (E) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder Securities covered by a Registration Statement, or the initiation or threatening of any proceeding for such Registration Statement in conformity with the requirements purpose, and (F) of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or Issuer Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iv) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, andor the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities covered by such Registration Statement for sale in any jurisdiction at the reasonably earliest practical date.
(v) If requested by the managing or lead underwriter(s), if any, or the Demand Members’ Counsel, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing or lead underwriter(s), if any, or the Demand Members’ Counsel may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(vi) Furnish or make available to each selling holder of Registrable Securities, and managing or lead underwriter(s), if any, without charge, such number of conformed copies of the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by a selling holder of Registrable Securities, the Demand Members’ Counsel or managing or lead underwriter(s)), and such other documents, as any selling holder of Registrable Securities or such managing or lead underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from the SEC or any other Governmental Entity relating to such offering.
(vii) Deliver to each selling holder of Registrable Securities, and the managing or lead underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities covered thereby; and the Company, subject to Section 3.7(b), 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 or lead underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto.
(viii) Prior to any public offering of Registrable Securities covered by a Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the managing or lead underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or managing or lead underwriter(s) reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable the selling holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(ix) Cooperate with the selling holders of Registrable Securities and the managing or lead underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing the Registrable Securities covered by a Registration Statement to be sold after receiving a written representation from each selling holder of Registrable Securities that such Registrable Securities represented by such certificates so delivered by each selling holder of Registrable Securities will be transferred in accordance with such Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing or lead underwriter(s), if any, or each such selling holder of Registrable Securities may request at least two (2) Business Days prior to any sale of such Registrable Securities.
(x) Upon the occurrence of any event contemplated by Section 3.7(a)(iii)(B) through Section 3.7(a)(iii)(F), at the request of such Stockholderany selling holder of Registrable Securities, prepare and file with the Company shall use reasonable best efforts to prepare, as soon as practical, SEC a supplement or post-effective amendment to such the Registration Statement, Prospectus or Issuer Free Writing Prospectus so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesSecurities covered thereby, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under in which they were are made, not misleading misleading.
(which notice shall notify xi) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by a Registration Statement from and after a date not later than the selling Stockholders only of the occurrence effective date of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Registration Statement.
(viixii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by any Demand Member or by the managing underwriters of such offering may request in order or lead underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares Securities covered by the a Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusStatement, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares each Demand Member and the underwritersmanaging or lead underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case use its reasonable best efforts to furnish to each Demand Member opinions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and counsel to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing or lead underwriter(s), if any, and counsels the Demand Members’ Counsel), addressed to the selling holders each Demand Member and each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithmanaging or lead underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the Demand Members’ Counsel and managing or lead underwriter(s), (iii) use commercially reasonable efforts to obtain “cold comfort” letters and updates thereof from the independent registered public accounting firm of the Company (and, if necessary, any other independent registered public accounting firm of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such counsel Registration Statement, addressed to each Demand Member (unless such firm shall be prohibited from so addressing such letters by applicable accounting standards or the policies of such firm) and underwriters; providedeach of the managing or lead underwriter(s), howeverif any, that such records letters to be in customary form and other information provided under clauses covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (Aiv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Article IV hereof with respect to all parties to be indemnified pursuant to said Article except as otherwise agreed by the Demand Members and the managing or lead underwriter(s) and (Bv) deliver such documents and certificates as may be reasonably requested by the Demand Members, the Demand Members’ Counsel and the managing or lead underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be subject done at each closing under such underwriting or similar agreement, or as and to such confidential treatment as is customary for underwriters’ due diligence reviews;the extent required thereunder.
(ixxiii) Upon execution of a customary confidentiality agreement, make available for inspection by a Representative of a Demand Member, the managing or lead underwriter(s), if any, and any attorneys, accountants or other agents or Representatives retained by Demand Members or managing or lead underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such Representative, managing or lead underwriter(s), attorney, accountant or Representatives in connection with such Registration Statement.
(xiv) Otherwise use its reasonable best efforts to cause comply with all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities applicable rules and regulations of the same class issued by the Company are then listed;
(x) provide a transfer agent SEC and registrar for all such Registrable Shares not later than the effective date of such Registration Statement andany applicable national securities exchange, a reasonable time before any proposed sale and make available to each selling holder of Registrable Shares pursuant to a Registration StatementSecurities, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
as soon as reasonably practicable (xibut not more than 18 months) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such periodStatement, which an earnings statement which shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; andAct.
(xiixv) promptly notify each selling Stockholder and Use its reasonable best efforts to have the managing underwriters of any Underwritten Offering, if any:
(1Registrable Securities listed on the stock exchange(s) when the Registration Statement, any preor inter-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to dealer quotation system on which the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountEquity Securities are listed.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence parties hereto will treat all notices of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), proposed Transfers and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Shareholders Agreement, Shareholder Agreement (Chrysler Group LLC)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required by the provisions of joining this Agreement to effect or cause the registration of and/or participate in a request that any offering or sale of any Registrable Shares be registered pursuant to Securities under the Securities Act as provided in this Article V, the Company shall Agreement (or use reasonable best efforts to effect, as soon as practical as provided in this Article V, accomplish the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretosame), the Company shall, as soon promptly as practical as provided hereinpracticable:
(a) prepare and file all filings required for the consummation of the offering, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) subject shall be selected by the Company (except as provided for in a Demand Registration Request) and (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the other provisions requirements of this Article Vthe applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as required by this Agreement, or prepare and file with the SEC a Registration Statement with respect prospectus supplement pursuant to such Registrable Shares and cause such Registration Statement to become an effective registration statement (unless it is automatically effective upon filing), provided, however, that as far in advance as reasonably practicable before filing the respective filings of a Registration Statement registration statement (or Prospectus amendment thereto), or before sending a response to an SEC comment letter prior to any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationsuch filing, the Company shall will furnish or otherwise make available to the holders of Participating Holders and to the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s)Financial Intermediaries, if any, copies of all such documents proposed to be filed (including all exhibits theretothereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the their reasonable review and reasonable comment (including any reasonable objections to any information pertaining to the Holders and their plan of such counseldistribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof) and such other documents the Company shall consider in good faith the changes reasonably and timely requested by such counselthe Participating Holders, including any comment letter from the SEC Financial Intermediaries and proposed response thereto, and, if requested by such counsel, provide such their legal counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Participating Holders or the managing underwriter(s)Financial Intermediaries, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to (i) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus or prospectus supplement used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement continuously effective for the relevant such period as required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, this Agreement and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement, and any prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act, in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement and (ii) provide notice to the Participating Holders and the Financial Intermediaries, if any, of the Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverfurnish, without charge, to each Participating Holder and each Financial Intermediary, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each selling Stockholder may reasonably request free writing prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in conformity with the requirements of the Securities Act, and other documents, as such Participating Holder and the Financial Intermediaries, if any, may reasonably request;
(vd) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or state “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any Participating Holder and the Financial Intermediaries, if any, shall reasonably requests request in writing, and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such Participating Holder and the Financial Intermediaries, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect in such jurisdictions for as so long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided such registration statement remains in effect), except that in no event shall the Company will not be required to (Ai) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (d), be required to qualify but for this subparagraph (v)be so qualified, (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xiie) promptly notify each selling Stockholder Participating Holder and the managing underwriters of any Underwritten OfferingFinancial Intermediaries, if any:
: (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement or related thereto, any post-effective amendment to the Registration Statement registration statement or any free writing prospectus has been filed with the SEC and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for additional information, including copies of any additional information regarding such Stockholder;
and all transmittal letters and other correspondence with the SEC and all correspondence (3) including comment letters and a copy of the notification Company’s draft responses thereto) from the SEC to the Company by the SEC relating to such registration statement or any prospectus or any amendment or supplement thereto; (iii) of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings for that purpose; (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky sky” laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and
(5v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed at the time of sale to any purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct. For correct in all material respects (unless otherwise qualified by materiality in which case such representations and warranties shall cease to be true and correct in all respects); and, if the avoidance notification relates to an event described in clause (v) above, unless the Company has declared that a Postponement Period exists, the Company shall promptly prepare and furnish to each such Participating Holder and the Financial Intermediaries, if any, a reasonable number of doubtcopies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders (including by way of filings with the SEC), as soon as reasonably practicable after the effective date of the registration statement (and in any event within (i) four (4) months if the Company qualifies as a foreign private issuer (as defined in Rule 405 of Regulation C under the Securities Act and Rule 3b-4 under the Exchange Act) or (ii) within forty-five (45) days after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of the Company’s first (x) full fiscal year if the Company qualifies as a foreign private issuer (as defined in Rule 405 of Regulation C under the Securities Act and Rule 3b-4 under the Exchange Act) or (y) calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158 thereunder;
(vii)g) (i) use its reasonable best efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed, (viii) if the listing of such Registrable Securities is then permitted under the rules of such exchange, and (xiii) comply (and continue to comply) with the requirements of this Section 5.07(aany self-regulatory organization applicable to the Company, including all corporate governance requirements;
(h) shall apply only cause its senior management, officers, appropriate employees and independent public accountants (in respect the case of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares independent public accountants, subject to be sold any applicable accounting guidance regarding their participation in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expensesor the due diligence process) to such Stockholder participate in, and to otherwise facilitate and cooperate with the preparation of at least the Minimum Amount.registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions), taking into account the Company’s reasonable business needs;
(bi) The provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by the applicable registration statement not later than the effective date of such registration statement and, in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(j) enter into, and cause its directors and officers to enter into, such customary agreements (including, if applicable, customary underwriting agreements and lock-up agreements not to exceed ninety (90) days if requested by the Financial Intermediaries) and take such other customary actions as the Participating Holders or the Financial Intermediaries shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(k) use its reasonable best efforts to obtain opinions from the Company’s counsel, including local and/or regulatory counsel, and a “comfort” letter and updates thereof from the independent public accountants who have certified the financial statements of the Company may require (and/or any other financial statements) included or incorporated by reference in such registration statement, in each selling Stockholder case, in customary form and each distributor of Registrable Shares covering such matters as are customarily covered by such opinions and “comfort” letters delivered to which any registration is being effected to Financial Intermediaries in underwritten public offerings; and furnish to each Participating Holder and to each Financial Intermediary a copy of such opinions and letters addressed to such Financial Intermediary;
(l) deliver promptly to counsel for the Company information regarding such Person Participating Holders and to the Financial Intermediaries, if any, copies of all correspondence between the SEC and the distribution Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such securities confidentiality agreements as the Company may from time reasonably request, make reasonably available for inspection by counsel for the Participating Holders, by counsel for the Financial Intermediaries, if any, participating in any disposition to time be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by the Participating Holders or the Financial Intermediaries, if any, during regular business hours, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably request in writing requested by any such counsel for the Participating Holders, counsel for a Financial Intermediary, attorney, accountant or agent in connection with such registration.registration statement;
(cm) Each Stockholder agrees by having use its Shares treated as Registrable Shares hereunder that, upon being advised in writing by reasonable best efforts to prevent the Company issuance or obtain the prompt withdrawal of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that order suspending the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount registration statement, or the prompt lifting of time a Stockholder is required to discontinue disposition any suspension of such securities.the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(dn) The Company may prepare provide a CUSIP number for all Registrable Securities not later than the effective date of the registration statement;
(o) use its reasonable best efforts to make available its senior management for participation in “roadshows” and deliver an issuer free-writing prospectus other marketing efforts and otherwise provide reasonable assistance to the Financial Intermediaries (as such term is defined in Rule 405 under taking into account the Securities ActCompany’s reasonable business needs and the requirements of the marketing process) in lieu the marketing of Registrable Securities in any underwritten offering;
(p) prior to the filing of any supplement document which is to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of be incorporated by reference into the Company to file a registration statement or the prospectus (after the initial filing or confidential submission of such registration statement) and which includes information regarding the Participating Holders or Financial Intermediaries, and prior to the filing or use of any amendment free writing prospectus which includes information regarding the Participating Holders or supplement thereto or to cause any Financial Intermediaries, provide copies of such document to become counsel for the Participating Holders and to each Financial Intermediary, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the information regarding the Participating Holders contained therein prior to the filing thereof as counsel for the Participating Holders or remain effective or usable within or Financial Intermediaries, if any, may reasonably request;
(q) furnish to counsel for any particular period of time as provided in Section 5.02the Participating Holders and to each Financial Intermediary, Section 5.04 or Section 5.07 or otherwise in this Article Vwithout charge, due to reasons that are not reasonably within its controlupon request, or due to any refusal at least one conformed copy of the SEC to permit a registration statement and any post-effective amendments or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus and prospectus supplement filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) despite and any free writing prospectus utilized in connection therewith;
(r) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
(s) include in any prospectus or prospectus supplement if requested by the Financial Intermediaries updated financial or business information for the Company’s good faith and most recent quarterly period if required for purposes of marketing the offering in the view of the Financial Intermediaries;
(t) use its reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that cause the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in Securities covered by the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior registration statement to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.be registered with
Appears in 2 contracts
Sources: Registration Rights Agreement (Haleon PLC), Registration Rights Agreement (Haleon PLC)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company is required by the provisions of joining in a request that this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to shall prepare and file with the SEC a the requisite Registration Statement Statement, which shall comply as to form in all material respects with respect the requirements of the applicable form and shall include all financial statements required by the SEC to such Registrable Shares be filed therewith, and use commercially reasonable efforts to cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or blue sky laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany Issuer Free Writing Prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the Holders participating in the planned offering (selected by the Designated Holder and reasonably satisfactory to the holders Company, in the case of a registration pursuant to Section 2.1, and selected by the Registrable Shares covered by such Registration Statementlead managing underwriter, their counsel if any, and reasonably satisfactory to the Designated Holder, in the case of a registration pursuant to Section 2.2) and the lead managing underwriter(s)underwriter, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectusamendment thereto, any Prospectus or supplement thereto or any amendments or supplements Issuer Free Writing Prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Designated Holder covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to shall prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant such period required hereunder, but no longer than is necessary as any seller of Registrable Securities pursuant to complete the distribution of the Shares covered by such Registration Statement, Statement shall request and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) delivershall furnish, without charge, to each seller of such Registrable Securities and each underwriter, if any, of the securities covered by such Registration Statement such number of copies of such Registration Statement, each amendment thereto, the Prospectus included in such Registration Statement, each preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request Issuer Free Writing Prospectus utilized in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement connection therewith, all in conformity with the requirements of the Securities Act, and such other documents as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller, and shall consent to the use in accordance with all applicable law of each such Registration Statement, each amendment thereto, each such Prospectus, preliminary Prospectus or Issuer Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement or Prospectus;
(vd) shall use commercially reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares Registration Statement under such other securities or “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any sellers of Registrable Securities or any managing underwriter, if any, reasonably requests shall request, and continue do any and all other acts and things that may be reasonably necessary or advisable to enable such registration sellers or qualification in effect underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions jurisdictions, except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where, but for as long as the applicable Registration Statement may requirements of this Section 2.4(d), it would not be required to be kept effective under this Agreement (provided that the Company will not be required so qualified, to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vie) shall promptly notify each Holder selling Stockholder and each distributor of such Registrable Shares identified Securities covered by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriter, if any:
(1i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or related thereto, any post-effective amendment to the Registration Statement or any Issuer Free Writing Prospectus has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for any additional information regarding such Stockholderinformation;
(3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration StatementStatement or the initiation of any proceedings for that purpose;
(4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or blue sky laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which results in the Registration Statement, the prospectus related thereto, any document incorporated therein by reference, any Issuer Free Writing Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and
(5vi) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement relating to the offering shall cease to be true and correct. For correct in all material respects; and, if the avoidance of doubtnotification relates to an event described in clause (v), the Company, subject to the provisions of clauses (viiSection 2.1(c), promptly shall prepare and file with the SEC, and furnish to each seller and each underwriter, if any, a reasonable number of copies of, a Prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(viii) and (xi) of this Section 5.07(af) shall apply only comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement (and in respect any event within 90 days after the end of such 12 month period described hereafter), an Underwritten Offering and only if (based on market prices at earnings statement, which need not be audited, covering the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder period of at least 12 consecutive months beginning with the Minimum Amount.first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(bg) shall cause all Registrable Securities covered by such Registration Statement to be authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such exchange;
(h) shall provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(i) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Designated Holder shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(j) in connection with an underwritten offering, shall obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement;
(l) shall provide a CUSIP number for all Registrable Securities, not later than the effective date of the Registration Statement;
(m) shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference into the Registration Statement or the Prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the selling holders of Registrable Securities and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(o) shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the sellers of Registrable Securities at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(q) shall not take any direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company, the Company will take such action as is necessary to make any such prohibition inapplicable;
(r) shall cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(s) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company files any shelf Registration Statement for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such Registration Statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders, in order to ensure that the Holders may be added to such shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment. The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each selling Stockholder and each distributor seller of Registrable Shares Securities as to which any registration is being effected to furnish to the Company such information in writing regarding such Person seller and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing may request; provided, that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration.
(c) . Each Stockholder seller of Registrable Securities agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company under Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such seller’s receipt of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 copies of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by Prospectus. In the Company, each Stockholder will deliver to event the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of shall give any such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained applicable period set forth in Section 2.4(b) shall automatically be extended by the amount number of time a Stockholder is required to discontinue disposition days during such period from and including the date of the giving of such securities.
(d) The Company may prepare notice to and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under including the Securities Act) in lieu date when each seller of any supplement to a Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus, and references herein . If any such Registration Statement or comparable statement under “blue sky” laws refers to any “supplement” Holder by name or otherwise as the Holder of any securities of the Company, such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Holder and the Company, to the effect that the holding by such Holder of such securities is not to be construed as a Prospectus shall include recommendation by such Holder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that such Holder will assist in meeting any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure future financial requirements of the Company or (ii) in the event that such reference to file a registration statement such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel, required by the Securities Act or any amendment similar federal statute or supplement thereto any state “blue sky” or to cause any such document to become or remain effective or usable within or for any particular period of time as provided securities law then in Section 5.02force, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal the deletion of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect reference to such offering until it is so completed (but not more than 60 days after the commencement of the offering)Holder.
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (CareView Communications Inc), Registration Rights Agreement (CareView Communications Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to The Company shall cooperate with any member of the Company Holder Affiliated Group in the sale of joining in a request that any Registrable Shares be registered Securities pursuant to this Article VSection 2 and Section 3, the Company shall use reasonable best efforts to effectand shall, as soon as practical reasonably practicable:
(a) prepare and file, in each case as provided in this Article Vpromptly as practicable, with the registration and SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of such Registrable Shares the securities to be included thereon in accordance with the intended method or methods of disposition distribution thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article Vif such Registration Statement is not automatically effective upon filing, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become be declared effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including a free writing prospectus under Rule 433 (a “Free Writing Prospectus”)) and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant in connection with an Underwritten Shelf Takedown prior to the effectiveness of the initial Registration Statement or the filing of a request for a Demand RegistrationProspectus with respect to any requested Underwritten Shelf Takedown, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementHolder, their its counsel and the managing underwriter(s), if any, ) copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counselPersons, and such other documents reasonably requested by such counselPersons, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counselPersons, provide such counsel Persons reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall include comments to any Registration Statement and any amendments or supplements thereto from the Holder, its counsel, or the managing underwriters, as reasonably requested. The Company shall not file any such Registration Statement or Statement, Prospectus, Free Writing Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration an Underwritten Shelf Takedown to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Holder, its counsel or the managing underwriter(s), if any, shall reasonably object, ) objects in writing, on a timely basis, unless, in unless the opinion of the Company’s counsel, Company is advised by counsel that such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunderprovided herein, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to (ii) comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during and (iii) cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such period Registration Statement, and as so supplemented, to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(c) notify the Holder, its counsel and the managing underwriter(s) promptly after the Company receives notice thereof (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(l) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus, Free Writing Prospectus, amendment or supplement thereto, or any document incorporated or deemed to be incorporated therein by reference, as then in effect, untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and that, in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(d) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, Statement or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United Statesearliest practical date;
(ive) deliverif requested by the managing underwriter(s) or the Holder, without chargepromptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriter or the Holder, such number of copies of as the preliminary and final Prospectus and any supplement thereto as each selling Stockholder case may be, may reasonably request in order to facilitate the disposition of the Registrable Shares Securities in accordance with the intended method or methods of distribution of such securities set forth in the Registration Statement and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not have any obligation to modify any information if the Company reasonably believes in good faith that so doing would cause (i) the Registration Statement to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Prospectus to contain an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(f) deliver to the Holder, its counsel, and the underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each selling Stockholder form of Prospectus) and each amendment or supplement thereto (including any Free Writing Prospectus) as such Persons may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities in accordance with the intended method or methods of disposition thereof; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Holder and the underwriters in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities ActProspectus and any such amendment or supplement thereto;
(vg) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the Holder, the underwriters, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky laws of such U.S. jurisdictions within the United States as each selling Stockholder the Holder or underwriter reasonably requests in writing and continue to use reasonable best efforts to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable the Holder to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 4(g), (Bii) subject itself to taxation in any such jurisdiction wherein it is not so subject or (Ciii) consent take any action that would subject it to general service of process in any such jurisdictionjurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(vih) notify each cooperate with the selling Stockholder members of the Holder Affiliated Group and each distributor the managing underwriter(s) to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and enable such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by in such distributordenominations and registered in such names as the managing underwriter(s), if any, or the selling members of the Holder Affiliated Group may request;
(i) subject to Section 3(f) above and upon the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements thereincontemplated by Section 4(c)(vi) above, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, promptly prepare a supplement or post-effective amendment to such the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesSecurities being sold thereunder, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)misleading;
(viij) in provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the case effective date of such Registration Statement. In connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date of the Registration Statement, cause an Underwritten Offering in opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which each selling Stockholder participates pursuant authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by a Demand Registrationmember of the Holder Affiliated Group or the underwriter or managing underwriter under the Registration Statement;
(k) use reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, a Piggyback prior to the effectiveness of such Registration or an S-3 Shelf Registration, Statement;
(l) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in Underwritten Offerings) and take all such other customary and reasonable actions as reasonably requested by the Holder (including those reasonably requested by the managing underwriters of such offering may request in order underwriter(s)) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, (i) make such representations and warranties to the selling holders of such Registrable Shares Securities and the underwriters, if any, underwriters with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offeringsUnderwritten Offerings, and, if true, confirm the same if and when reasonably requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, selling holders of such Registrable Securities opinions of outside counsel (A) make reasonably available, for inspection by and/or internal counsel if acceptable to the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of underwriter(s)) to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(sunderwriters and counsel to the Holder), if any, and counsels addressed to the selling holders Holder and each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use reasonable best efforts to obtain “cold comfort” letters and updates thereof from an independent registered public accounting firm with respect to the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to the Holder (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, (iv) enter into an underwriting agreement which contains indemnification provisions and procedures that are customary for underwriting agreements in connection with Underwritten Offerings; and (v) deliver such documents and certificates as may be reasonably requested by the Holder or its counsel, as the case may be, or the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 4(l)(i) and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(m) upon reasonable notice, make available for inspection by a representative of the Holder, the underwriters participating in any such disposition of Registrable Securities, and any attorneys or accountants retained by the Holder or underwriter (collectively, the “Inspectors”) at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that such records any information and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company Records that are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally publicly available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt delivery of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must information shall be maintained shall automatically be extended kept confidential by the amount Inspectors unless (i) disclosure of time a Stockholder such information or Records is required to discontinue disposition by court or administrative order, (ii) disclosure of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement information or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination DateRecords, in which event the Company’s obligations under this Section 5.07 shall continue with respect opinion of counsel to such offering until it Inspector, is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Rollins Gary W), Registration Rights Agreement (Rollins Gary W)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required by the provisions of joining in a request that any Registrable Shares be registered pursuant this Agreement to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided hereinpossible (but, in any event, within 60 days after a Demand Registration Request in the case of Section 2.4(a) below), in connection with the registration of the Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Shares Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain continuously effective from the date such registration statement is declared effective until the earliest to occur (unless it is automatically effective upon filing), i) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (ii) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration statement (provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or state “blue sky” laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany free writing prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders of Holders participating in the Registrable Shares covered planned offering (selected by such Registration Statement, their the Majority Participating Holders) and to one counsel and for the managing underwriter(s)Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counselcounsel (provided that the Company shall be under no obligation to make any changes suggested by the Holders), and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements free writing prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Majority Participating Holders or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement continuously effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, set forth in Section 2.4(a) and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement (and, in connection with any shelf registration statement, file one or more prospectus supplements covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) use reasonable best efforts to obtain in the withdrawal event of any order suspending underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the effectiveness Manager of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statessuch offering;
(ivd) deliverfurnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and each selling Stockholder may reasonably request free writing prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ve) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or state “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably requests request in writing, and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect in such jurisdictions for as so long as such registration statement remains in effect), except that in no event shall the applicable Registration Statement may Company be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (e), be required to qualify but for this subparagraph (v)be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xiif) promptly notify each selling Stockholder Participating Holder and the each managing underwriters of any Underwritten Offeringunderwriter, if any:
: (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement or related thereto, any post-effective amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for any additional information regarding such Stockholder;
information; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings for that purpose; (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky sky” laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and
(5v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct. For correct in all material respects; and, if the avoidance notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of doubtcopies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(g) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 45 days, or 90 days if it is a fiscal year, after the end of such 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company’s first fiscal quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158 thereunder;
(viih) (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (viiiB) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(j) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (xiit being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(k) of this Section 5.07(ause its reasonable best efforts (i) shall apply only to obtain an opinion from the Company’s counsel and a comfort letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in respect of an Underwritten Offering such registration statement, in each case, in customary form and only if (based on market prices at the time the offering is requested covering such matters as are customarily covered by such Stockholderopinions and comfort letters (including, in the case of such comfort letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the number of Registrable Shares dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to be sold the underwriters, if any, and to the Majority Participating Holders, and (ii) furnish to each Holder participating in the offering would reasonably be expected and to yield gross proceeds (prior to deducting underwriting discounts each underwriter, if any, a copy of such opinion and commission and offering expenses) letter addressed to such Stockholder of at least the Minimum Amount.underwriter;
(bl) The Company may require deliver promptly to counsel for each selling Stockholder Participating Holder and to each distributor managing underwriter, if any, copies of Registrable Shares as all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to which any registration is being effected to furnish discussions with the SEC or its staff with respect to the Company information regarding such Person and the distribution registration statement, and, upon receipt of such securities confidentiality agreements as the Company may from time reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to time be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably request in writing requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration.registration statement;
(cm) Each Stockholder agrees by having use its Shares treated as Registrable Shares hereunder that, upon being advised in writing by reasonable best efforts to obtain the Company prompt withdrawal of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that order suspending the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount registration statement, or the prompt lifting of time a Stockholder is required to discontinue disposition any suspension of such securities.the qualification of any of the Registrable Securities for sale in any jurisdiction;
(dn) The Company may prepare provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(o) use its best efforts to make available its employees and deliver an issuer free-writing prospectus personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (as such term is defined in Rule 405 under taking into account the Securities Actneeds of the Company’s businesses and the requirements of the marketing process) in lieu marketing the Registrable Securities in any underwritten offering;
(p) prior to the filing of any supplement document which is to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of be incorporated by reference into the Company to file a registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any amendment or supplement thereto or to cause any free writing prospectus, provide copies of such document to become counsel for each Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or remain effective or usable within or underwriters may reasonably request;
(q) furnish to counsel for any particular period of time as provided in Section 5.02each Participating Holder and to each managing underwriter, Section 5.04 or Section 5.07 or otherwise in this Article Vwithout charge, due to reasons that are not reasonably within its control, or due to any refusal at least one signed copy of the SEC to permit a registration statement and any post-effective amendments or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.any free writing prospectus utilized in connection therewith;
(fr) It is further understood cooperate with the Participating Holders and agreed that the Company shall managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not have bearing any obligations under this Section 5.07 restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed least three Business Days prior to any sale of Registrable Securities to the Registration Termination Dateunderwriters or, if not an underwritten offering, in which event accordance with the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement instructions of the offering).Participating Holders at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(gs) Notwithstanding anything to the contrary in this Article Vcooperate with any due diligence investigation by any Manager, the Company shall not be required to file a Registration Statement underwriter or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date Participating Holder and make available such documents and records of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required its Subsidiaries that they reasonably request (which, in the case of the Participating Holder, may be subject to achieve effectiveness of such Registration Statement.the execution by the Par
Appears in 2 contracts
Sources: Registration Rights Agreement (Slide Insurance Holdings, Inc.), Registration Rights Agreement (Slide Insurance Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification Arsenal is required to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use its commercially reasonable best efforts to effect, as soon as practical effect the registration of any offering of Registrable Securities under the Securities Act as provided in this Article VSection 2, the Arsenal shall use its commercially reasonable efforts to effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto Arsenal shall use its commercially reasonable efforts to cooperate in the Company shallsale of the Registrable Securities and shall use its commercially reasonable efforts to, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders or Arsenal in accordance with respect the intended method or methods of distribution thereof, and use its commercially reasonable efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto and, to the extent reasonably practicable, (excluding documents that would be incorporated by reference or deemed to be incorporated therein by reference (other than documents prepared in a connection with the Registration Statement filed pursuant to a request for a Demand Registrationor the sale of Registrable Securities)), the Company Arsenal shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementManchester, their its counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such Manchester and its counsel, and such other documents reasonably requested by such Manchester and its counsel, including any comment letter and all transmittal letters or other correspondence to or received from the SEC and proposed response theretoor, to the extent relevant to the registration, any other Governmental Entity, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein (including any Issuer Free Writing Prospectus related thereto) and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyArsenal’s books and records, officers, accountants and other advisors. The Company Arsenal shall not file any such Registration Statement or Prospectus, Prospectus (including any Issuer Free Writing Prospectus related thereto) or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration any registration required pursuant to Section 2.1 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Manchester, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselArsenal, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to each Registration Statement and, subject to the deferral and suspension provisions of Section 2.1(e), use its commercially reasonable efforts to cause such Registration Statement to be continuously effective during the period provided herein and the Prospectus used comply in connection therewith as may be necessary to comply all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify Manchester and the managing underwriter(s), if any, as promptly as reasonably practicable, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if Arsenal becomes aware at any time that the representations and warranties of Arsenal contained in any underwriting agreement, securities sale agreement, or other similar agreement relating to the offering cease to be true and correct in any material respect, (v) of the receipt by Arsenal of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or overt threatening of any proceeding for such purpose, and (vi) of the happening of any event (but not the nature or the details concerning such event) that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or Manchester, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, Manchester or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after Arsenal has received such request.
(f) Furnish or make available to Manchester and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final Prospectus each post-effective amendment thereto, including financial statements, and any supplement thereto such other documents, as each selling Stockholder Manchester, such Holders or such managing underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Shares Securities.
(g) Deliver to Manchester and each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each selling Stockholder form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Securities; and Arsenal, subject to the last paragraph of this Section 2.4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by Manchester and each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with Manchester and the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder Manchester or the managing underwriter(s), if any, reasonably requests in writing (provided, however, that Arsenal shall not be obligated to qualify as a foreign corporation to do business under the laws of any jurisdiction in which it is not then qualified to file any general consent to service of process) and continue to use its commercially reasonable efforts to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor disposition of such Registrable Shares identified by Securities in such Stockholderjurisdiction.
(i) Cooperate with Manchester and the managing underwriter(s), at if any, to facilitate the timely preparation and delivery of certificates (not bearing any time when a Prospectus relating thereto would be required under the legends) representing Registrable Securities Act to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such distributorSelling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or Manchester may request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event as contemplated by Sections 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to Manchester and the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at .
(k) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the request effective date of such Stockholder, the Company shall use Registration Statement.
(l) Use its commercially reasonable best efforts to preparecause all Registrable Securities covered by such Registration Statement to be authorized to be listed on (i) The Nasdaq National Market, so long as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light securities of the circumstances under same class issued by Arsenal are then listed on The Nasdaq National Market and (ii) each other national securities exchange, if any, on which they were made, not misleading (which notice shall notify the selling Stockholders only securities of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);same class issued by Arsenal are then listed.
(viim) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into customary agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by Manchester or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, (i) make such representations and warranties to the holders of such Registrable Shares and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company Arsenal and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when customarily requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its commercially reasonable efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable lawmanaging underwriter(s), (A) make reasonably availableif any, for inspection by the managing underwriters opinions of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions Arsenal and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithmanaging underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably and customarily requested by such counsel managing underwriter(s), (iii) use its commercially reasonable efforts to obtain “cold comfort” letters and underwriters; providedupdates thereof from the independent certified public accountants of Arsenal (and, howeverif necessary, that any other independent certified public accountants of any Subsidiary of Arsenal or of any business acquired by Arsenal for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such records Registration Statement, addressed to each of the managing underwriter(s), if any, such letters to be in customary form and other information provided under clauses covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (Aiv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions with respect to the managing underwriter(s) and (Bv) deliver such documents and certificates as may be reasonably requested by the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by Arsenal. The above shall be subject done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(n) Cause its senior executive officers to use their commercially reasonable efforts to support the marketing of the Registrable Securities covered by the Registration Statement (including, without limitation, by participation in “road shows”, holding meetings with potential investors and taking such confidential treatment other actions as is customary for underwriters’ shall reasonably be requested by the managing underwriter(s), if any).
(o) Cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and in the performance of any due diligence reviews;investigation by any underwriter(s) in an underwritten offering.
(ixp) Otherwise use its commercially reasonable best efforts to cause comply with all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities applicable rules and regulations of the same class issued by SEC and any applicable national securities exchange, to the Company are then listed;
(x) provide a transfer agent extent applicable to the offer and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant Securities by the Holders from time to a time in accordance with the methods of distribution set forth in the Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) and make generally available to Stockholders a consolidated earnings statement its security holders, as soon as reasonably practicable (which need but not be auditedmore than 18 months) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such periodregistration statement, which an earnings statement which shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act Act. Manchester and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and Selling Holder agree that, upon receipt of written notice from Arsenal of the managing underwriters happening of any Underwritten Offeringevent of the kind described in Sections 2.4(c)(ii), if any:
(1c)(iii), (c)(iv), (c)(v) when the Registration Statementor (c)(vi) hereof, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Manchester and such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding until Manchester’s and such Stockholder;
(3) Holder’s receipt of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness copies of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities supplemented or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) amended Prospectus contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt2.4(k) hereof, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) or until it is advised in writing by the Company Arsenal that the use of the applicable Prospectus may be resumed resumed, and is furnished with a supplemented has received copies of any additional or amended Prospectus as contemplated supplemental filings that are incorporated or deemed to be incorporated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then reference in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Prospectus; provided, however, that Arsenal shall extend the time periods under this Article V Section 2.1 and Section 2.2 with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder the Holder is required to discontinue disposition of such securities.
(d) The Company may prepare . Manchester and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.S
Appears in 2 contracts
Sources: Registration Rights Agreement (Misys PLC), Registration Rights Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company filing of joining in a request that any Registrable Shares be registered Registration Statement pursuant to this Article VSection 2 or 3 hereof, the Company and the Guarantors shall use reasonable best efforts effect such registrations to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares the securities covered thereby in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company and the Guarantors shall, as soon as practical as provided herein:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC SEC, as provided herein, a Registration Statement with respect or Registration Statements as prescribed by Section 2 or 3, and use their respective best efforts to such Registrable Shares and cause each such Registration Statement to become effective and remain effective as pro- vided herein, provided that, if (unless it 1) such filing is automatically effective upon filing)pursuant to Section 3, providedor (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, however, that before filing a any Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall and the Guarantors shall, if requested, furnish or otherwise make available to and afford the holders Holders of the Registrable Shares Notes covered by such Registration StatementStatement and each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriter(s), if any, 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 (including exhibits thereto), which documents will be subject to the reasonable review and comment of extent practicable, at least 5 business days prior to such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsfiling). The Company and the Guarantors shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with in respect to a Demand Registration to of which the holders Holders must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority in aggregate principal amount of the Registrable Shares Notes covered by such Registration Statement (Statement, or such Participating Broker-Dealer, as the case may be, their counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in object to information concerning the opinion of the Company’s counsel, Holders or such filing is necessary to comply with applicable law;Participating Broker-Dealer contained therein.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Shelf Registration Statement and or Exchange Registration Statement, as the Prospectus used in connection therewith case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; cause the related Prospectus to be supplemented by any prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the applicable requirements provisions of the Securities Act and the Exchange Act applicable to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act them with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth as so amended or in such Registration Statement;
(iii) use reasonable Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus; the Company and the Guarantors shall be deemed not to have used their best efforts to obtain keep a Registration Statement effective during the withdrawal Applicable Period if any of them voluntarily takes any action that would result in selling Holders of the Registrable Notes covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period unless such action is required by applicable law or unless the Company and the Guarantors comply with this Agreement, including without limitation, the provisions of clauses 5(c)(v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, notify the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriter(s), if any, promptly (but in any event within two business days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment thereto has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto, when the same has become effective 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 thereto including financial statements and schedules, 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 a Registration Statement or of any Registration Statement, order preventing or suspending the use of any preliminary Prospectus or the lifting initiation 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 Notes or resales of Exchange Notes by Participating Broker-Dealers the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(n) below cease to be true and correct, (iv) of the receipt by any of the Company or the Guarantors of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Shares Notes or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included or any information becoming known that makes any statement made in such Registration Statement contains an 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 the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact 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 or any Guarantor's reasonable determination that a post-effective amendment to a Registration Statement would be necessary or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use their best efforts to obtain the withdrawal of any such order as promptly as practicable.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested by the managing underwriter(s), if any, or the Holders of a majority in aggregate principal amount of the Registrable Notes being sold in connection with an underwritten offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter(s), if any, or such Holders reasonably request to be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notifi- cation of the matters to be incorporated in such Prospectus supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, furnish to each selling Holder of Registrable Notes who so requests and to each such Participating Broker-Dealer who so requests and to counsel and the managing underwriter(s), if any, without charge, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each selling Holder of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their counsel, and the managing underwriter or underwriters, if any, without charge, as many copies of 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 5, each of the Company and the Guarantors hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, and the managing underwriter or underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery of a Prospectus contained in the Exchange Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Appli- cable Period, to use their best efforts to register or qualify, and to cooperate with the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of (or exemption from such registration or qualification), such Registrable Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, Participating Broker-Dealer, or the managing underwriter or underwriters, if any, reasonably request in writing, provided that where Exchange Notes held by Participating Broker-Dealers or Registrable Notes are offered other than through an underwritten offering, the Company and the Guarantors agree to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the Registrable Notes covered by the applicable Registration Statement; provided that none of the Company or the Guarantors 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) subject itself to taxation in any such jurisdiction where it is not otherwise so subject.
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate with the selling Holders of Registrable Notes and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Notes to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request.
(j) Use their best efforts to cause the Registrable Notes covered by the 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 managing underwriter or underwriters, if any, to consummate the disposition of such Registrable Notes, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case each of the Company and the Guarantors will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly as reasonably practicable prepare and (subject to Section 5(a)) file with the SEC, at the request joint and several expense of such Stockholder, each of the Company shall use reasonable best efforts to prepare, as soon as practicaland the Guarantors, a supplement or post-effective amendment to such the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable Shares, Notes being sold thereunder or to the purchasers of the Exchange Notes to whom such Prospectus shall will be delivered by a Participating Broker-Dealer, any such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading.
(which notice shall notify l) Use their best efforts to cause the selling Stockholders only Registrable Notes covered by a Registration Statement or the Exchange Notes, as the case may be, to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement or the Exchange Notes, as the case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the occurrence of such an event and shall provide no additional information regarding such event first Registration Statement relating to the extent such information would constitute material non-public information);Registrable Notes, (i) provide the Trustee with certificates for the Registrable Notes or Exchange Notes, as the case may be, in a form eligible for deposit with The Depository Trust Com- pany and (ii) provide a CUSIP number for the Registrable Notes or Exchange Notes, as the case may be.
(viin) in the case In connection with an underwritten offering of an Underwritten Offering in which each selling Stockholder participates Registrable Notes pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions as is customary in underwritten offerings of counsel and comfort letters), debt securities similar to the Notes and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels in order to expedite or facilitate the selling holders registration or the disposition of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange Notes, and in such connection, (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xii) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.managin
Appears in 2 contracts
Sources: Registration Rights Agreement (MWC Acquisition Sub Inc), Registration Rights Agreement (Hayes Lemmerz International Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company is required by the provisions of joining in a request that this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to shall prepare and file with the SEC a Registration Statement the requisite registration statement, which shall comply as to form in all material respects with respect the requirements of the applicable form and shall include all financial statements required by the SEC to such Registrable Shares be filed therewith, and use commercially reasonable efforts to cause such Registration Statement registration statement to become and remain effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or blue sky laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany Issuer Free Writing Prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders Holders participating in the planned offering (selected by the Majority Participating Holders, in the case of a registration pursuant to Section 2.1, and selected by the Registrable Shares covered by such Registration Statementlead managing underwriter, their counsel in the case of a registration pursuant to Section 2.2) and the lead managing underwriter(s)underwriter, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements Issuer Free Writing Prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) registration statement or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to shall prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement effective for the relevant such period required hereunder, but no longer than is necessary as any seller of Registrable Securities pursuant to complete the distribution of the Shares covered by such Registration Statement, registration statement shall request and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement;
(c) shall furnish, without charge, to each seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment thereto, the prospectus included in such registration statement, each preliminary prospectus and each Issuer Free Writing Prospectus utilized in connection therewith, all in conformity with the requirements of the Securities Act, and such other documents as such seller and underwriter reasonably may request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller, and shall consent to the use in accordance with all applicable law of each such registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus;
(d) shall use commercially reasonable efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall request, and do any and all other acts and things that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions, except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) shall promptly notify each Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any Issuer Free Writing Prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by 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 of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which results in the registration statement, the prospectus related thereto, any document incorporated therein by reference, any Issuer Free Writing Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and
(vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company, subject to the provisions of Section 2.1(c), promptly shall prepare and file with the SEC, and furnish to each seller and each underwriter, if any, a reasonable number of copies of, a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) shall comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 90 days after the end of such 12 month period described hereafter), an earnings statement, which need not be audited, covering the period of at least 12 consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) shall use commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such exchange;
(h) shall provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities that are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(j) shall use commercially reasonable efforts to obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesregistration statement;
(ivl) delivershall provide a CUSIP number for all Registrable Securities, without chargenot later than the effective date of the registration statement;
(m) shall make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, such number taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus, and prior to the filing of any Issuer Free Writing Prospectus, provide copies of such document to counsel for the preliminary selling holders of Registrable Securities and final Prospectus to each managing underwriter, if any, and any supplement thereto make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the filing thereof as each counsel for such selling Stockholder holders or underwriters may reasonably request request;
(o) shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the sellers of Registrable Securities at least three Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(q) shall not take any direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company, the Company will take such action as is necessary to make any such prohibition inapplicable;
(r) shall cooperate with each seller of Registrable Shares Securities and each underwriter or agent participating in the disposition of each selling Stockholder such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(s) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by such Registration Statement Section 2.1 or 2.2 complies in conformity all material respects with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification , is filed in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under accordance with the Securities Act to be delivered by such distributorthe extent required thereby, of is retained in accordance with the occurrence of Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, . To the extent the Company is a well-known seasoned issuer as defined in Rule 405 under the Securities Act (a “WKSI”) at the request of time any Demand Registration Request is submitted to the Company, and such StockholderDemand Registration Request requests that the Company file an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) on Form F‑3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. The Company shall use commercially reasonable best efforts to prepare, as soon as practical, remain a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall WKSI and not contain become an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an ineligible issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement during the period during which such automatic shelf registration statement is required to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of remain effective. If the Company to file a does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02is filed, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 pay such fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the shelf registration statement on or after Form F‑3 and, if such form is not available, Form F‑1 and keep such registration statement effective during the Registration Termination Date, unless an Underwritten Offering in period during which a Stockholder participates has been priced but not completed prior such registration statement is required to be kept effective. Notwithstanding anything contained herein to the Registration Termination Datecontrary, the Company shall be entitled to exclude from the shelf registration statement such Registrable Securities as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel) is reasonably necessary for the offering to qualify as a secondary (rather than a primary) offering pursuant to Rule 415 under the Securities Act in response to comments from the staff of the SEC. To the extent any Registrable Securities are so excluded, the Company agrees to register such excluded shares in accordance with Section 2.1 promptly when eligible to do so under applicable federal securities laws, rules, regulations and policies, as the Company and its securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel). If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders, in which event order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment. The Company may require as a condition precedent to the Company’s obligations under this Section 5.07 shall continue with respect 2.4 that each seller of Registrable Securities as to such offering until it which any registration is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, being effected furnish the Company shall not be required to file a Registration Statement or include Registrable Shares such information in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information writing regarding such Stockholder reasonably requested by seller and the distribution of such Registrable Securities as the Company from time to time reasonably may request; provided, that such information is necessary for the Company to consummate such registration and required to achieve effectiveness shall be used only in connection with such registration. Each seller of Registrable Securities agrees that upon receipt of any notice from the Company under Section 2.4(e)(v), such Registration Statement.seller will discontinue such s
Appears in 2 contracts
Sources: Registration Rights Agreement (Verdant Earth Technologies LTD), Registration Rights Agreement (Verdant Earth Technologies LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof in accordance with respect the intended method or methods of distribution thereof (including, without limitation, a Partner Distribution), and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsfiled. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus used in connection therewith to be supplemented by any Prospectus supplement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement during or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such period purpose, and (v) of the happening of any event that makes any statement made in accordance with such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the intended methods making of disposition set forth any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in the United States;jurisdiction.
(ive) deliverIf requested by the managing underwriters, without chargeif any, or the holders of a majority of Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such number of copies of information as the preliminary managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one (1) copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Upon the occurrence of any event as contemplated by Section 6(c)(v) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits 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 the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(l) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(m) Use its reasonable best efforts to preparecause all Registrable Securities covered by such Registration Statement to be authorized to be quoted on the Nasdaq Stock Market or listed on a national securities exchange if securities of the particular class of Registrable Securities are at that time quoted on the Nasdaq Stock Market or listed on such exchange, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);case may be.
(viin) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) use its reasonable best efforts to obtain a report of the independent petroleum engineers of the Company relating to the oil and gas reserves of the Company included in such Registration Statement if the Company has had its reserves prepared, audited or reviewed by an independent petroleum engineer, such report to be in customary form and covering matters of the type customarily covered in such reports, (v)if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (vi) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 6(n)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(o) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such records and other information provided under clauses (A) and (B) above shall be subject kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such confidential treatment Person, is required by law, or (iii) such information becomes generally available to the public other than as is customary a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which any market transactions in securities of the same class issued by the Company are then listed;or its subsidiaries in violation of law.
(xp) provide a transfer agent Comply with all applicable rules and registrar for all such Registrable Shares not later than regulations of the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) SEC and make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period its security holders earning statements satisfying the provisions of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
, or any similar rule promulgated under the Securities Act, no later than ninety (xii90) promptly notify each selling Stockholder and days after the managing underwriters end of any Underwritten Offering, if any:
twelve (112) when the Registration Statement, any pre-effective amendment, the Prospectus month period (or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) such shorter period of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu (i) commencing at the end of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering fiscal quarter in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Securities are sold
Appears in 2 contracts
Sources: Registration Rights Agreement (ANTERO RESOURCES Corp), Registration Rights Agreement (ANTERO RESOURCES Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any Proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any Proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a omit to state any material fact required to be stated therein or necessary to make the statements thereintherein not misleading and, that in light the case of the circumstances under which they were madeProspectus, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public nonpublic information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten counsel for the Corporation, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format, and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any Public Offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment Public Offering, but in any other such sale, within ten business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration or an S-3 Shelf RegistrationStatement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, the Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi)6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, each Stockholder will immediately discontinue or as and to the extent required thereunder;
(and direct any other Persons making offers and sales p) make available for inspection by a representative of the selling holders of Registrable Shares to immediately discontinue) offers and sales Securities, any underwriter participating in any such disposition of Registrable Shares pursuant to Securities, if any, and any Registration Statement (attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other than those pursuant to a plan that is in effect prior to such time records, pertinent corporate documents and that complies with Rule 10b5-1 properties of the Exchange Act) until it is advised in writing by Corporation and its subsidiaries and cause the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)officers, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.directo
Appears in 2 contracts
Sources: Registration Rights Agreement (Gardner Denver Holdings, Inc.), Registration Rights Agreement (Gardner Denver Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required by the provisions of joining in a request that any Registrable Shares be registered pursuant this Agreement to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided herein:possible (but, in any event, within sixty (60) days after a Demand Registration Request in the case of Section 2.4(a) below):
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Shares Securities in accordance with the intended method of disposition thereof (including, without limitation, a Partner Distribution), which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or state “blue sky” laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany free writing prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders of Holders participating in the Registrable Shares covered planned offering (selected by such Registration Statement, their the Majority Participating Holders) and to one counsel and for the managing underwriter(s)Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements free writing prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Majority Participating Holders or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to (i) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement continuously effective for the relevant such period required hereunder, but no longer than is necessary as any Participating Holder pursuant to complete the distribution of the Shares covered by such Registration Statement, registration statement shall request and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of the Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverfurnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each selling Stockholder may reasonably request free writing prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(vd) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or state “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably requests request in writing, and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect in such jurisdictions for as so long as such registration statement remains in effect), except that in no event shall the applicable Registration Statement may Company be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (d), be required to qualify but for this subparagraph (v)be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xiie) promptly notify each selling Stockholder Participating Holder and the each managing underwriters of any Underwritten Offeringunderwriter, if any:
: (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement or related thereto, any post-effective amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for any additional information regarding such Stockholder;
information; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings for that purpose; (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky sky” laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and
(5v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct. For correct in all material respects; and, if the avoidance notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of doubtcopies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158 thereunder;
(viig) (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (viiiB) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(h) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (xiit being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(j) of this Section 5.07(ause its reasonable best efforts (i) shall apply only to obtain an opinion from the Company’s counsel and a “cold comfort” letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in respect of an Underwritten Offering such registration statement, in each case, in customary form and only if (based on market prices at the time the offering is requested covering such matters as are customarily covered by such Stockholderopinions and “cold comfort” letters (including, in the case of such “cold comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the number of Registrable Shares dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to be sold the underwriters, if any, and to the Majority Participating Holders, and (ii) furnish to each Holder participating in the offering would reasonably be expected and to yield gross proceeds (prior to deducting underwriting discounts each underwriter, if any, a copy of such opinion and commission and offering expenses) to such Stockholder of at least the Minimum Amount.letter;
(bk) The Company may require deliver promptly to counsel for each selling Stockholder Participating Holder and to each distributor managing underwriter, if any, copies of Registrable Shares as all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to which any registration is being effected to furnish discussions with the SEC or its staff with respect to the Company information regarding such Person and the distribution registration statement, and, upon receipt of such securities confidentiality agreements as the Company may from time reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to time be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably request in writing requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration.registration statement;
(cl) Each Stockholder agrees by having use its Shares treated as Registrable Shares hereunder that, upon being advised in writing by reasonable best efforts to obtain the Company prompt withdrawal of any order suspending the effectiveness of the occurrence registration statement, or the prompt lifting of an event pursuant any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to Section 5.07(a)(vimake available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(o) prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Stockholder will immediately discontinue Participating Holder and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(p) furnish to counsel for each Participating Holder and direct to each managing underwriter, without charge, at least one signed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other Persons making offers prospectus filed under Rule 424 under the Securities Act and sales all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(q) cooperate with the Participating Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least three (3) Business Days prior to any sale of Registrable Shares Securities to immediately discontinuethe underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three (3) offers and sales Business Days prior to any sale of Registrable Shares pursuant Securities and instruct any transfer agent and registrar of Registrable Securities to release any Registration Statement stop transfer orders in respect thereof;
(other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of r) take no direct or indirect action prohibited by Regulation M under the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, ; provided, however, that the time periods under this Article V with respect to the length of time extent that any prohibition is applicable to the effectiveness of a Registration Statement must be maintained shall automatically be extended by Company, the amount of time a Stockholder Company will take such action as is required necessary and feasible to discontinue disposition of make any such securities.prohibition inapplicable;
(ds) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within use its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments cause the Registrable Securities covered by the applicable registration statement to be registered with or overcome approved by such failureother governmental agencies or authorities as may be necessary to enable the Participating Holders or the underwriters, shall not be a breach if any, to consummate the disposition of this Agreement.such Registrable Securities;
(ft) It is further understood and agreed that take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to disposition of such offering until it is so completed (but not more than 60 days after the commencement of the offering).Registrable Securities;
(gu) Notwithstanding anything take all reasonable action to the contrary ensure that any free writing prospectus utilized in this Article V, the Company shall not be required to file a Registration Statement connection with any registration covered by Section 2.1 or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.2.2 co
Appears in 2 contracts
Sources: Registration Rights Agreement (MRC Global Inc.), Registration Rights Agreement (MRC Global Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shallshall cooperate in the sale of the securities and shall use its reasonable best efforts, as soon promptly as practical as provided hereinpracticable to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (if such Registration Statement is not an Automatic Shelf Registration Statement), (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Shareholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant a Prospectus supplement or post-effective amendment to a Demand Registration, a Piggyback the applicable Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing Statement such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable SharesSecurities, includingits counsel and each managing underwriter, causing its officers to use their reasonable best efforts to support the marketing if any, without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by the Registration Statement (including making members of senior management of reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Company may furnish or make available at reasonable times and places any such documents in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to taxation or general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, and the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, all financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing representative, underwriter, counsel or accountant in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Statement; provided, however, that any information that is not generally publicly available at the time periods under this Article V with respect of delivery of such information shall be kept confidential by such Offering Persons except (i) where disclosure of such information is requested or legally compelled (in either case pursuant to the length of time that the effectiveness terms of a Registration Statement must be maintained shall automatically be extended valid and effective subpoena or order issued by the amount a court of time competent jurisdiction or a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement federal, state or local governmental or regulatory body or pursuant to a Prospectuscivil investigative demand or similar judicial process), and references herein (ii) where such information is or becomes generally known to any “supplement” the public other than as a result of a non-permitted disclosure or failure to a Prospectus shall include any safeguard by such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided Offering Persons in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach violation of this Agreement.
, (fiii) It is further understood and agreed that where such information (A) was known to such Offering Persons on a nonconfidential basis (prior to its disclosure by the Company) from a source other than the Company shall that, after reasonable inquiry, is entitled to disclose such information and is not have bound by any obligations under this Section 5.07 at any time on contractual, legal or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior fiduciary obligation of confidentiality to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue Company with respect to such offering until it is so completed information, (but not more than 60 days after B) was in the commencement possession of the offering).
(g) Notwithstanding anything Offering Persons on a nonconfidential basis prior to its disclosure to the contrary in this Article V, Offering Persons by the Company or (C) is subsequently developed by the Offering Persons without using all or any portion of such information or violating any of the obligations of such Persons under this Agreement or (iv) for disclosure in connection with any suit, arbitration, claim or litigation involving this Agreement or against any Offering Person under federal, state or other securities laws in connection with the offer and sale of any Registrable Securities. In the case of a proposed disclosure pursuant to (i) (or, unless such Person and the Company are adversaries in such suit, arbitration, claim or litigation, (iv)) above, such Person shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in give the applicable Demand Registration, Piggyback Registration or Shelf RegistrationCompany written notice of the proposed disclosure prior to such disclosure and to cooperate with the Company, at least five days prior to the anticipated filing date of the Registration StatementCompany’s cost, information regarding such Stockholder reasonably requested by in any effort the Company and required undertakes to achieve effectiveness of such Registration Statement.obtain a protective o
Appears in 2 contracts
Sources: Registration Rights Agreement (Signet Jewelers LTD), Investment Agreement (Signet Jewelers LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shallshall cooperate in the sale of the securities and shall use its reasonable best efforts, as soon promptly as practical as provided hereinpracticable to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration Prospectus supplement or an S-3 Shelf Registration, enter into an underwriting agreement containing post-effective amendment such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable SharesSecurities, includingits counsel and each managing underwriter, causing its officers to use their reasonable best efforts to support the marketing if any, without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by the Registration Statement (including making members of senior management of reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Company may furnish or make available at reasonable times and places any such documents in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the Purchaser of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, all financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing representative, underwriter, counsel or accountant in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such noticeStatement, provided, however, that any information that is not generally publicly available at the time periods under this Article V of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order or in connection with respect an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the length rules and regulations of time that the effectiveness SEC), (iii) such information is or becomes generally available to the public other than as a result of a Registration Statement must be maintained shall automatically be extended non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the amount of time Company) from a Stockholder is required source other than the Company when such source, to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure knowledge of the Company Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed information, (but not more B) becomes available to the Offering Persons from a source other than 60 days after the commencement Company when such source, to the knowledge of the offering).
(g) Notwithstanding anything Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the contrary in this Article VCompany with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the Company Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall not be required to file give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating Prospectus under this Agreement and except in the applicable Demand Registrationcase of clause (i) above when a proposed disclosure is in connection with a routine audit or examination by, Piggyback Registration or Shelf Registrationa blanket document request from, at least five days prior to the anticipated filing date a regulatory or self-regulatory authority, bank examiner or auditor); and
(p) cooperate with each seller of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Registrable Secu
Appears in 2 contracts
Sources: Registration Rights Agreement (Graftech International LTD), Investment Agreement (Graftech International LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1 or 2.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Holders’ Representative, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the existence of any fact of which the Company becomes aware that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 2.4, hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters underwriter(s) and (v) deliver such documents and certificates as may be reasonably requested by the Holders of any Underwritten Offeringa majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having Cause its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant officers to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering without limitation, by participation in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event “road shows”) taking into account the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article Vbusiness needs; provided, that, neither the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.nor its officer
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Moneygram International Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shallshall cooperate in the sale of the securities and shall use its reasonable best efforts, as soon promptly as practical as provided hereinpracticable to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that that, before filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement reference, except to the extent that such documents shall have previously been filed pursuant with or furnished to a request for a Demand Registrationthe SEC), the Company shall furnish or otherwise make available to counsel for the holders of the Registrable Shares Securities covered by such Registration Statement, Statement (who may share such documents with their counsel clients) and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors; provided that nothing in this Section 6(a) is intended to effect any waiver of the Company’s attorney-client or other legal privilege. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments amendment or supplements supplement thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein, except to the extent that such documents shall have previously been filed with or furnished to the SEC) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 of the Securities Act;
(c) notify counsel to each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person or such selling holder) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (if such Registration Statement is not an Automatic Shelf Registration Statement), (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceeding for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any change in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so and that, as thereafter delivered to any prospective purchasers in the case of such Registrable Sharesthe Prospectus, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Shareholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then-issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant a Prospectus supplement or post-effective amendment to a Demand Registration, a Piggyback the applicable Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing Statement such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any action under this Section 6(e) that is not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to counsel for each selling holder of Registrable SharesSecurities and each managing underwriter, includingif any, causing its officers to use their reasonable best efforts to support the marketing without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such counsel, the Registration Statement (including making members of senior management of holder such counsel represents or such underwriter); provided that the Company may furnish or make available at reasonable times and places any such document in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such document in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to taxation or general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legend) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorization, certificate, or direction required by the transfer agent that authorizes and directs the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, or, if later, the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, all financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing Offering Persons in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Statement; provided, however, that any information that is not generally publicly available at the time periods under this Article V with respect of delivery of such information shall be kept confidential by such Offering Persons except (i) where disclosure of such information is requested or legally compelled (in either case pursuant to the length of time that the effectiveness terms of a Registration Statement must be maintained shall automatically be extended valid and effective subpoena or order issued by the amount a court of time competent jurisdiction or a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement federal, state or local governmental or regulatory body or pursuant to a Prospectuscivil investigative demand or similar judicial process), and references herein (ii) where such information is or becomes generally known to any “supplement” the public other than as a result of a non-permitted disclosure or failure to a Prospectus shall include any safeguard by such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided Offering Persons in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach violation of this Agreement.
, (fiii) It is further understood and agreed that where such information (A) was known to such Offering Persons on a nonconfidential basis (prior to its disclosure by the Company) from a source other than the Company shall that, after reasonable inquiry, is entitled to disclose such information and is not have bound by any obligations under this Section 5.07 at any time on contractual, legal or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior fiduciary obligation of confidentiality to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue Company with respect to such offering until it is so completed information, (but not more than 60 days after B) was in the commencement possession of the offering).
(g) Notwithstanding anything Offering Persons on a nonconfidential basis prior to its disclosure to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested Offering Persons by the Company and required to achieve effectiveness or (C) is subsequently developed by the Offering Persons without using all or any portion of such Registration Statement.information or violating any of the obligations of such Persons under this Agreement or (iv) for disclosure in connection with any suit, arbitration, claim or litigation involving this Agreement or against any Offering Person under federal, state or other securities laws in connection with the offer and sale of any Registrable Securities. In the case of a proposed disclosure pur
Appears in 2 contracts
Sources: Registration Rights Agreement (Catalent, Inc.), Equity Commitment and Investment Agreement (Catalent, Inc.)
Registration Procedures. In the case of each Registration, qualification or compliance effected by the Company pursuant to this Section 2, the Company will keep the Investors and Major Common Holders advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. The Company will:
(a) Whenever a Stockholder requests or provides notification to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, Prepare and file as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance practicable with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Shares the securities to be Registered and use its best efforts to cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), until the Investors and Major Common Holders have completed the distribution described in the Registration Statement relating thereto; provided, however, however that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationStatement, the Company shall will furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, and any attorney, accountant or other agent retained by any such holders of Registrable Securities or underwriters (a) copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselholders, their counsel and underwriters, if any, and such (b) if requested, financial and other documents reasonably requested information required by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity Commission to participate be included in the preparation of such Registration Statement and each Prospectus included therein all financial and other records, pertinent corporate documents and properties of the Company customarily reviewed in connection with an underwritten registration; and shall cause the officers, directors and employees of the Company, counsel to the Company and independent certified public accountants to the Company, to respond to such other opportunities inquiries and supply all information, as shall be necessary, in the opinion of respective counsel to such holders and underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall will not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of at least a majority of the Registrable Shares Securities covered by such Registration Statement or the underwriter, if any, shall, for reasonable reasons, object;
(b) Furnish to the Investor, Major Common Holders and to each underwriter such number of copies of the Registration Statement and all amendments thereto and the prospectus included therein (including each preliminary prospectus and any amendments or supplements to the prospectus or preliminary prospectus) as such persons may reasonably request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement (or their counsel) or and the managing underwriter(s)Company hereby consents to the use of, in accordance with all applicable laws, of each of the Registration Statement and any amendments thereto and any prospectus and any supplement thereto by each such seller and underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in connection with the opinion offering and sale of the Company’s counsel, Registrable Securities covered by such filing is necessary to comply with applicable lawRegistration Statement);
(iic) use reasonable best efforts to prepare Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith with such Registration Statement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and or to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such for the period in accordance with the intended methods of disposition set forth in such Registration StatementSection 2.8(a) above;
(iiid) use reasonable Use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities laws of such jurisdictions as shall be reasonably requested by the Investors and Major Common Holders, to keep such Registration or qualification in effect for so long as the Registration Statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller; provided, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(e) Use its best efforts to (i) obtain the withdrawal of any order suspending the effectiveness of any such Registration Statement, Statement or sales thereunder at the lifting of any suspension of the qualification or exemption from qualification of any earliest possible time and (ii) cause all Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder Securities covered by such Registration Statement in conformity to be registered with or approved by such other governmental agencies or authorities of United States jurisdictions as may be necessary to enable the requirements seller thereof to consummate the disposition of the Securities Actsuch Registrable Securities;
(vf) use Comply with all applicable rules and regulations of the Commission;
(g) Permit any Investor or Major Common Holder which, in its reasonable best efforts judgment, might be deemed to register be an underwriter or qualify a controlling person of the Company, to participate in the preparation of such Registrable Shares Registration Statement or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Investor or Major Common Holder and its counsel should be included;
(h) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering provided the Investors shall also enter into and perform their respective obligations under such other securities or blue sky laws an agreement;
(i) Notify the holders of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as Registrable Securities covered by the applicable Registration Statement may be at any time (i) when a prospectus relating thereto is required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required delivered under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such Registration Statement contains Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading or incomplete in the light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable lawthen existing, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1ii) when the Registration Statement, any pre-effective amendment, the Prospectus prospectus relating thereto or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed filed, and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective;
, (2iii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the Registration Statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
(3) information, of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
Statement or the initiation of any proceedings for such purpose, (4iv) if at any time the representations and warranties of the Company to the Investor and Major Common Holder in connection with the registration cease to be accurate in all material respects, or (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Shares Securities for sale under in any jurisdiction or the applicable securities initiation or blue sky laws threatening of any jurisdictionproceeding for such purpose;
(j) Use its best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such Registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to each Investor and Major Common Holder selling Registrable Securities in the offering and (ii) a “comfort” letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters and the Investor;
(k) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities not bearing any restrictive legends and in a form eligible for deposit with The Depository Trust Company, or other exchange agent reasonably acceptable to the Company, to be sold and cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holder of Registrable Securities may request at least three (3) business days prior to any sale of Registrable Securities to the underwriters;
(l) Use all reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities covered by the Registration Statement contemplated hereby;
(m) Cause all such Registrable Securities registered pursuant to a Registration Statement that becomes effective to be listed on each securities exchange on which similar securities issued by the Company are then listed; and
(5n) if at any time the Company has reason to believe that the representations Provide a transfer agent and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of registrar for all Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those Securities registered pursuant to a plan Registration Statement that is in effect prior to becomes effective and a CUSIP number for all such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)Registrable Securities, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of case not later than the Prospectus covering such Registrable Shares current at the time of receipt effective date of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesRegistration.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sunrun Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If the Company of joining is required to file a Registration Statement to Register Registrable Securities under the Securities Act as provided in a request that any Registrable Shares be registered pursuant to this Article VSection 2, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinwill:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and within 60 days of the receipt of a request for Registration file with the SEC a Commission the Registration Statement with respect required pursuant to such Registrable Shares Section 2, and use commercially reasonable efforts to cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before as promptly as practicable thereafter. Prior to filing a such Registration Statement or Prospectus or any amendments or supplements thereto and, to with the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationCommission, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered counsel selected by such Registration Statement, their counsel and the managing underwriter(s), if any, Cablevision copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including counsel before any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to made, and the Company will comply with applicable lawany reasonable request made by such counsel to make changes in any information contained in such documents relating to the Stockholder;
(ii) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with maintain the applicable requirements effectiveness of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, registration and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during until the earliest of (A) the termination of this Agreement pursuant to Section 17 and (B) such period in accordance with the intended methods time as all of disposition set forth in such Registration Statementsecurities have been disposed of;
(iii) use reasonable best efforts furnish to obtain the withdrawal Stockholder such number of any order suspending the effectiveness conformed copies of any such Registration Statement, or the lifting Statement and of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale each such amendment and supplement thereto (in any jurisdiction in the United States;
(iv) deliver, without chargeeach case including all exhibits), such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement and any supplements thereto and any other Prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, including documents incorporated by reference, as the Stockholder may reasonably request;
(viv) use all reasonable best efforts to register or qualify all Registrable Securities registered pursuant to such Registrable Shares Registration Statement under such other securities or blue sky laws of such U.S. jurisdictions as each selling the Stockholder shall reasonably requests and continue request, to keep such registration or qualification in effect for so long as such Registration Statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the securities owned by the Stockholder, except that the Company shall not for as long as the applicable Registration Statement may any such purpose be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)iv) be obligated to be so qualified, (B) to be subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(v) use all reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Stockholder to consummate the disposition of such Registrable Securities;
(vi) promptly notify each selling the Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when the Company becomes aware that a Prospectus relating thereto would to Registrable Securities is required to be required delivered under the Securities Act to be delivered by such distributorAct, of the occurrence happening of any event as a result of which the Prospectus included in such Registration Statement contains Statement, as then in effect, includes an untrue statement of a material fact or omits a to state any material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading, and, at the request of such Stockholderthe Stockholder and subject to Section 4(b)(i) and Section 8 hereof, promptly prepare and furnish to the Company shall use Stockholder a reasonable best efforts to prepare, as soon as practical, number of copies of a supplement to or an amendment to of such Prospectus as may be necessary so that, as thereafter delivered to any prospective the purchasers of such Registrable Sharessecurities, such Prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in otherwise use all reasonable efforts to comply with the case Securities Act and the Exchange Act and with all applicable rules and regulations of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters)the Commission, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing consider any suggestions of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, Stockholder with respect to the business of the Company and its material Subsidiaries, and the such Registration Statement, Statement or Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestedensure such compliance;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares Securities covered by the Registration Statement not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4ix) of use all reasonable efforts to list all Shares covered by such Registration Statement on any securities exchange on which the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdictionCommon Stock is then listed; and
(5x) if at any time upon the Company has reason to believe that the representations and warranties reasonable request of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease Stockholder, otherwise use all reasonable efforts to be true and correct. For effect the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number registration of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 Securities under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time Act as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement2.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Merger Agreement (Cablevision Systems Corp /Ny), Merger Agreement (General Electric Co)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect the registration of any Registrable Securities under the Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall reasonably cooperate in good faith in the sale of the securities and shall, as soon expeditiously as practical as provided hereinreasonably possible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC and FINRA all required filings, including a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof (including, without limitation, a distribution to, and, to such the extent applicable, resale by, the members or partners of a holder of Registrable Shares Securities, a “Partner Distribution”), and use its reasonable best efforts to cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company Corporation shall furnish or otherwise make available to each holder of Registrable Securities whose Registrable Securities are included in such Registration Statement or Prospectus, to one counsel for the holders of the Registrable Shares Securities covered by such Registration StatementStatement or Prospectus (selected by the holders of a majority of such Registrable Securities or, their in any Underwritten Block Trade or Underwritten Shelf Takedown, the initiating Major Shareholder) and to one counsel and for the managing underwriter(s)underwriters, if any, copies reasonably complete drafts of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselholders and counsel (including any objections to any information pertaining to any such holders and its plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and such other documents reasonably requested by such holders or counsel, including any comment letter from correspondence between the SEC and proposed response theretothe Corporation, its counsel or auditors and all memoranda relating to discussions with the SEC with respect to such Registration Statement (including documents that would be incorporated or deemed to be incorporated therein by reference), and, if requested by such holders or counsel, provide such holders and/or counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) ), or any such comparable statements under securities or state “blue sky” laws of any jurisdiction, or any such free writing prospectus related thereto, with respect to a Demand Registration Registration, to which the such holders or counsel, on behalf of such holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) Prospectus or such managing underwriters, as the managing underwriter(s), if anycase may be, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notwithstanding anything contained herein to the contrary, at the request of any holder of Registrable Securities seeking to effect or considering a Partner Distribution, file any Prospectus supplement or post-effective amendments, or include in the initial Registration Statement any disclosure or language, or include in any Prospectus supplement or post-effective amendment any disclosure or language, and otherwise take any action, deemed necessary or advisable by such holder to effect such Partner Distribution;
(d) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly and in writing, (i) when a Registration Statement, any pre-effective amendment thereto, a Prospectus, any Prospectus supplement, any post-effective amendment to a Registration Statement or any free writing prospectus has been filed with the SEC and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any Registration Statementproceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(p) below cease to be true, complete and correct, or could reasonably be expected with the lifting passage of time to cease to be true, complete and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor if the Corporation becomes aware of such Registrable Shares identified by such Stockholder, at the existence of any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of fact or the occurrence of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an Statement, related Prospectus, any document incorporated or deemed to be incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents, free writing prospectus or information so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, therein not misleading, andand that in the case of the Prospectus, any free writing prospectus or the information conveyed to any purchaser at the request time of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment sale to such Prospectus so thatpurchaser, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the existence of such a fact or occurrence of such an event and shall provide no additional information regarding such fact or event to the extent such information would constitute material non-public information);
(viie) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(f) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration Prospectus supplement or an S-3 Shelf Registration, enter into an underwriting agreement containing post-effective amendment such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, or such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(f) that are not, in the opinion of counsel for the Corporation, in compliance with applicable law;
(g) furnish or make available to each selling holder of Registrable SharesSecurities, includingits counsel and each managing underwriter, causing its officers to use their reasonable best efforts to support the marketing if any, without charge, as many conformed copies of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by the Registration Statement (including making members of senior management of the Company available at reasonable times reference, and places to participate all exhibits, unless requested in “road-shows” that the managing underwriter determines are necessary to effect the offeringwriting by such holder, counsel or underwriter), adding information requested by the managing underwriters and any free writing prospectus utilized in connection therewith, as such Persons may reasonably request;
(h) deliver to the Prospectuseach selling holder of Registrable Securities, and making such representations and warranties to the holders of such Registrable Shares its counsel, and the underwriters, if any, without charge, as many copies of each Prospectus (including each form of or preliminary Prospectus) and each amendment or supplement thereto, and each free writing prospectus utilized in connection therewith, as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; and the Corporation, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each such amendment or supplement thereto, and each such free writing prospectus, by each of the Company selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(i) prior to any Public Offering of Registrable Securities, use its material Subsidiariesreasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, Prospectus and documentsenable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment underwritten offering, but in any other such sale, within five (5) business days prior to having to issue the securities, and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof (and, in the case of Registrable Securities registered on a shelf registration statement, at the request of any holder, prepare and deliver certificates representing such Registrable Securities not bearing any restrictive legends and deliver or cause to be delivered an opinion or instructions to the transfer agent in order to allow such Registrable Securities to be sold from time to time);
(k) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(l) upon the Corporation becoming aware of the existence of any fact or occurrence of any event contemplated by Section 6(d)(vi) above, promptly prepare and file with the SEC 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 reference, or file any other required document so that, as thereafter promptly delivered to the purchasers of the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiim) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixn) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before in the case of any proposed sale of Registrable Shares pursuant to a Registration Statementsecondary equity offering, provide the transfer agent and enter into any reasonable agreements with printed certificates a custodian for the Registrable Shares to be soldSecurities;
(xio) make generally available to Stockholders a consolidated earnings statement (which need not be auditedi) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of use its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome cause all Registrable Securities covered by such failure, shall not Registration Statement to be a breach listed on the principal national securities exchange on which similar securities of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed Corporation are then listed prior to the effectiveness of such Registration Termination DateStatement and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Corporation, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).including, without limitation, all corporate governance requirements;
(gp) Notwithstanding anything to the contrary enter into such agreements (including an underwriting agreement in this Article Vform, the Company shall not be required to file a Registration Statement or include Registrable Shares scope and substance as is customary in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding underwritten offerings) and take all such Stockholder other actions reasonably requested by the Company and required holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to achieve effectiveness expedite or facilitate the disposition of such Registration Statement.Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration
Appears in 2 contracts
Sources: Registration Rights Agreement (Informatica Inc.), Registration Rights Agreement (Informatica Inc.)
Registration Procedures. If and whenever registration of Registrable Securities is required pursuant to this Agreement, subject to the express terms and conditions set forth in this Agreement, the procedures to be followed by the Company and each participating Holder to register the sale of Registrable Securities pursuant to a Registration Statement, and the respective rights and obligations of the Company and such Holders with respect to the preparation, filing and effectiveness of such Registration Statement, are as follows:
(a) Whenever The Company will (i) prepare and file a Stockholder requests Registration Statement or provides notification to a prospectus supplement, as applicable, with the Commission (within the time period specified in Section 2(a) or Section 2(b), as applicable, in the case of a Shelf Registration, an Underwritten Shelf Takedown or a Demand Registration) which Registration Statement (A) shall be on a form selected by the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, for which the Company qualifies, (B) shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and be available for the sale of such the Registrable Shares Securities in accordance with the intended method or methods of disposition thereofdistribution, andand (C) shall comply as to form in all material respects with the requirements of the applicable form and include and/or incorporate by reference all financial statements required by the Commission to be filed therewith, pursuant thereto, the Company shall, as soon as practical as provided herein:
and (iii) subject to the other provisions of this Article V, use its commercially reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and remain effective upon filingfor the periods provided under Section 2(a) or Section 2(b), providedas applicable, however, that before filing in the case of a Shelf Registration Statement or a Demand Registration Statement. The Company will furnish to any Qualified Holder named as a selling shareholder (or selling shareholders) therein, any counsel designated by such Qualified Holder, counsel for the Holders of a Majority of Included Registrable Securities (selected as provided herein) and the managing underwriter or underwriters (selected as provided herein) of an underwritten Public Offering of Registrable Securities, if applicable, copies of all substantive correspondence from the Commission received in connection with such Public Offering, subject in each case to such foregoing Persons entering into a customary confidentiality agreement with respect thereto if requested by the Company. The Company will (I) at least two (2) Business Days (or such shorter period as shall be reasonably practicable under the circumstances) prior to the anticipated filing of the Shelf Registration Statement, a Demand Registration Statement or any related Prospectus or any amendments amendment or supplements thereto andsupplement thereto, or before using any Issuer Free Writing Prospectus, furnish to the extent reasonably practicableany Qualified Holder named as a selling shareholder (or selling shareholders) therein, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered any counsel designated by such Registration Statement, their Qualified Holder and counsel for the Holders of a Majority of Included Registrable Securities (selected as provided herein) and the managing underwriter(s)underwriter or underwriters (selected as provided herein) of an underwritten Public Offering of Registrable Securities, if anyapplicable, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject in each case to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, foregoing Persons entering into a customary confidentiality agreement with respect thereto if requested by the Company), (II) use its commercially reasonable efforts to address in each such counsel, provide document prior to being so filed with the Commission such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning comments as any of the Securities Act, including reasonable access to foregoing Persons reasonably shall propose and (III) without limiting the Company’s books and recordsrights under Section 2(f), officersnot include in any Registration Statement or any related Prospectus or any amendment or supplement thereto information regarding a participating Holder to which a participating Holder reasonably objects; provided, accountants and other advisors. The however, the Company shall not file be required to provide copies of any such Registration Statement amendment or Prospectus, supplement filed solely to incorporate in any Form S-1 (or other form not providing for incorporation by reference) any filing by the Company under the Exchange Act or any amendments amendment or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which supplement filed for the holders purpose of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;adding additional selling shareholders thereunder.
(iib) use reasonable best efforts to The Company will as promptly as reasonably practicable (i) prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and supplements to such each Registration Statement and the Prospectus used in connection therewith as (A) may be reasonably requested by any Holder of Registrable Securities covered by such Registration Statement necessary to permit such Holder to sell in accordance with its intended method of distribution, to the extent consistent such intended method of distribution is consistent with Exhibit B hereto, or (B) may be necessary to comply with the under applicable requirements of the Securities Act and law to keep such Registration Statement continuously effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all Registrable Securities covered thereby for the Shares covered by such Registration Statement during such period periods provided under Section 2(a) or Section 2(b), as applicable, in accordance with the intended methods method of disposition set forth in such Registration Statement;distribution.
(iiic) use reasonable best efforts to obtain the withdrawal The Company will make all required filing fee payments in respect of any Registration Statement or Prospectus used under this Agreement (and any Public Offering covered thereby) within the deadlines specified by the Securities Act.
(d) The Company will notify each Holder of Registrable Securities named as a selling shareholder in any Registration Statement and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if applicable, (i) as promptly as reasonably practicable when any Registration Statement or post-effective amendment thereto has been declared effective; (ii) of the issuance or threatened issuance by the Commission or any other governmental or regulatory authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement covering any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition all of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with Securities or the requirements of the Securities Act;
(v) use reasonable best efforts to register initiation or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence threatening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading Proceedings for that purpose; (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; or (iv) of the discovery that, or upon the happening of any event the result of which, such Registration Statement or Prospectus or Issuer Free Writing Prospectus relating thereto or any document incorporated or deemed to be incorporated therein by reference contains an untrue statement in any material respect or omits any material fact necessary to make the statements in the Registration Statement or the Prospectus or Issuer Free Writing Prospectus relating thereto (in the case of a Prospectus or an Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, or when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement or Prospectus, or if, for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act, correct such misstatement or omission or effect such compliance.
(e) Upon the occurrence of any event contemplated by Section 3(d)(iv), as promptly as reasonably practicable, the Company will (x) prepare a supplement or amendment, including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or to the applicable Issuer Free Writing Prospectus, (y) furnish, if requested, a reasonable number of copies of such supplement or amendment to the selling Holders, their counsel and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if applicable, and (z) file such supplement, amendment and any other required document with the Commission so that, as thereafter delivered to the purchasers of any Registrable Shares for sale Securities, such Registration Statement, such Prospectus or such Issuer Free Writing Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or an Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading, and such Issuer Free Writing Prospectus shall not include information that conflicts with information contained in the applicable securities Registration Statement or blue sky laws Prospectus, in each case such that each selling Holder can resume disposition of such Registrable Securities covered by such Registration Statement or Prospectus. Following receipt of notice of any jurisdiction; and
event contemplated by Section 3(d)(ii) through (5) if at any iv), a Holder shall suspend sales of the Registrable Securities pursuant to such Registration Statement and shall not resume sales until such time as it has received written notice from the Company has reason to believe that the representations and warranties of the such effect. The Company contained in shall provide any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease supplemented or amended prospectus necessary to be true and correct. For the avoidance of doubtresume sales, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountany Holder.
(bf) The Company may require each selling Stockholder and each distributor of Registrable Shares as will use its commercially reasonable efforts to which any registration is being effected to furnish to avoid the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder thatissuance of, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), andor, if so directed by issued, obtain the Company, each Stockholder will deliver to the Company all copies, withdrawal of (i) any stop order or other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that order suspending the effectiveness of a Registration Statement must be maintained shall automatically be extended by or the amount use of time a Stockholder any Prospectus filed pursuant to this Agreement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as practicable, or if any such order or suspension is required to discontinue disposition of such securitiesmade effective during any Suspension Period, as promptly as practicable after the Suspension Period is over.
(dg) During the Effectiveness Period or the Shelf Period, as applicable, the Company will furnish to each selling Holder, its counsel and the managing underwriter or underwriters of an underwritten Public Offering of Registrable Securities, if applicable, upon their request, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such selling Holder or underwriter (including those incorporated by reference) promptly after the filing of such documents with the Commission.
(h) The Company may prepare will promptly deliver to each selling Holder and deliver the managing underwriter or underwriters of an issuer free-writing prospectus underwritten Public Offering of Registrable Securities, if applicable, without charge, as many copies of the applicable Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any Issuer Free Writing Prospectus)), all exhibits and other documents filed therewith and such other documents as such term is defined selling Holder or underwriter may reasonably request in Rule 405 order to facilitate the disposition of the Registrable Securities by such selling Holder or underwriter, and upon request, subject to any confidentiality undertaking as the Company shall reasonably request, a copy of any and all transmittal letters or other correspondence to or received from the Commission or any other governmental authority relating to such offer. Subject to Section 2(e) hereof, the Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and any applicable underwriter in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(i) [Reserved.]
(j) The Company will cooperate with the Holders and the underwriter or managing underwriter of an underwritten Public Offering of Registrable Securities, if any, to facilitate the timely preparation and delivery of certificates or book-entry statements representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates or book-entry statements shall be free of all restrictive legends, indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act) , Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in lieu such denominations and registered in such names as any such Holders or the underwriter or managing underwriter of an underwritten Public Offering, as applicable, may reasonably request and instruct any transfer agent and registrar of Registrable Securities, if any, may request. In connection therewith, if required by the Company’s transfer agent, the Company will promptly, after the effective date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon the sale by any Holder or the underwriter or managing underwriter of an underwritten Public Offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement and to release any stop transfer orders in respect thereof. At the request of any supplement Holder or the managing underwriter, if any, the Company will promptly deliver or cause to a Prospectus, and references herein be delivered an opinion or instructions to any “supplement” the transfer agent in order to a Prospectus shall include any such issuer free-writing prospectusallow the Registrable Securities to be sold from time to time free of all restrictive legends.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(gk) Notwithstanding anything to the contrary in this Article Vcontained herein, the Company right of any Holder to include such Holder’s Registrable Securities in an underwritten offering shall be conditioned upon (x) such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein, (y) such Holder entering into customary agreements, including an underwriting agreement in customary form and sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Holders entitled to select the managing underwriter or managing underwriters hereunder (provided that (I) any such Holder shall not be required to file a Registration Statement make any representations or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior warranties to the anticipated filing date Company or the underwriters (other than (A) representations and warranties regarding (1) such Holder’s ownership of the Registration Statementits Registrable Securities to be sold or transferred, information regarding (2) such Stockholder Holder’s power and authority to effect such transfer, (3) such matters pertaining to compliance with securities laws as may be reasonably requested by the Company or the underwriters, (4) the accuracy of information concerning such Holder as provided by or on behalf of such Holder, and (5) any other representations required to achieve effectiveness be made by the Holder under applicable law, and (B) such other representations, warranties and other provisions relating to such Holder’s participation in such Public Offering as may be reasonably requested by the underwriters) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 6(b) hereof, or to the underwriters with respect thereto, except to the extent of the indemnification being given to the underwriters and their controlling Persons in Section 6(b) hereof and (II) the aggregate amount of the liability of such Registration StatementHolder in connection with such offering shall not exceed such Holder’s net proceeds from the disposition of such Holder’s Registrable Securities in such offering and (z) such Holder completing and executing all questionnaires, powers of attorney, custody agreements and other documents reasonably required under the terms of such underwriting arrangements or by the Company in connection with such underwritten Public Offering.
(l) The Company agrees with each Holder that, in connection with any underwritten Public Offering (including an Underwritten Shelf Takedown), the Company shall: (i) enter into and perform under such customary agreements (including underwriting agreements in customary form, including customary representations and warranties and provisions with respec
Appears in 2 contracts
Sources: Registration Rights Agreement (Noble Corp), Registration Rights Agreement (Noble Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect the registration of any Registrable Securities under the Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof or the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement (other than in connection with a Piggyback Registration initial filing) or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant but excluding any amendment or supplement solely to a request for a Demand Registrationadd or change selling stockholders named therein), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;.
(ii) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant applicable period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(iii) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (1) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (3) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(a)(xv) below cease to be true and correct, (5) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (6) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiiiv) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ivv) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary then outstanding Registrable Securities being sold in connection with an underwritten offering, or the Shareholders participating in a Resale Shelf Registration, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders or Shareholders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(a)(v) that are not, in the opinion of counsel for the Corporation, in compliance with applicable law.
(vi) Furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(vii) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Corporation, subject to Section 6(c), hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vviii) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company Corporation will not be required to (A1) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (C2) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(viix) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(x) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(xi) Upon the occurrence of any event as contemplated by Section 6(a)(iii)(6) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(xii) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(xiii) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(xiv) Use its reasonable best efforts to prepare, as soon as practical, a supplement cause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on The New York Stock Exchange or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light other securities exchange on which shares of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only particular class of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Registrable Securities are at that time qualified or listed.
(viixv) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making with respect to an underwritten registration, (1) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, underwriters with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viii2) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, underwriters and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewith, Securities and each of the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (3) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (4) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (5) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters to evidence the continued validity of the representations and warranties made pursuant to Section 6(a)(xv)(1) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(xvi) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Corporation and its subsidiaries, and cause the officers, directors and employees of the Corporation and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that such records and other any information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current not generally publicly available at the time of receipt delivery of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must information shall be maintained shall automatically be extended kept confidential by the amount of time a Stockholder is required to discontinue disposition such Persons unless (1) disclosure of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term information is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.require
Appears in 2 contracts
Sources: Registration Rights Agreement (Freescale Semiconductor Holdings I, Ltd.), Registration Rights Agreement (Freescale Semiconductor Holdings I, Ltd.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the Company’s obligations to the Company of joining in a request that any Registrable Shares be registered keep current and effective each Registration Statement pursuant to this Article VSection 2 hereof, the Company shall will use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, will as soon expeditiously as practical as provided hereinpossible use its reasonable efforts to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicable, excluding documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel furnish to AIG, AHA and the managing underwriter(s)underwriter or underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review of AIG, AHA and comment of such counselthe managing underwriter or underwriters, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall will not file any such Registration Statement or Prospectus, amendment thereto or any amendments Prospectus or supplements any supplement thereto (including excluding such documents that, upon filing, would be incorporated or deemed incorporated by reference thereinand proposed to be filed after the initial filing of the Registration Statement) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) AIG, AHA or the managing underwriter(s)underwriter or underwriters, if any, shall reasonably and timely object; provided, that the Company may assume, for the purposes of this paragraph (a), that objections to the inclusion of information (i) requested by the staff of the SEC to be included in writingthe Registration Statement or other documents, on a timely basis, unless(ii) required, in the opinion of counsel to the Company’s counsel, to be in the Registration Statement or other documents, or (iii) required by the Securities Act or the Rules and Regulations thereunder to be in the Registration Statement or other documents, shall not be deemed to be reasonable objections; and, provided, further, that the Company shall, to the extent reasonably practicable in light of the circumstances, consult with AIG, AHA and the managing underwriter or underwriters as to any document that is to be incorporated by reference in the Registration Statement during the marketing period of any underwritten offering until the closing of such filing is necessary to comply with applicable lawunderwritten offering;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and such supplements to the Prospectus, as may be required by the Rules and Regulations or the instructions applicable to the registration form utilized by the Company or by the Securities Act or the Rules and Regulations thereunder for registration or otherwise necessary to keep the Registration Statement effective and cause the Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration StatementStatement or supplement to the Prospectus;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vic) notify each selling Stockholder AIG, AHA and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the or underwriters, if any, with respect to the business of the Company and its material Subsidiariespromptly, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, confirm such advice in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;writing,
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1i) when the Registration Statement, any pre-effective amendmentamendment thereto, the Prospectus or any Prospectus prospectus supplement or any post-effective amendment to the Registration Statement has been filed filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;,
(2ii) of any comments by the SEC and the “Blue Sky” or securities commissioner or regulator of any state with respect to the Registration Statement, the Prospectus or any prospectus supplement or any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or Statement, the Prospectus or any prospectus supplement or for any additional information regarding such Stockholder;information,
(3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC or any other regulatory authority of any stop order suspending the effectiveness of the Registration Statement;Statement or the initiation or threatening of any proceedings for that purpose,
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (m) below cease to be true and correct,
(v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Shares Securities for sale under the applicable securities or blue sky “Blue Sky” laws of any jurisdiction; jurisdiction or the initiation or threatening of any proceeding for such purpose, and
(5vi) of the existence of any fact which results in the Registration Statement, any amendment or post-effective amendment thereto, the Prospectus, any prospectus supplement, or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if at any time requested by the Company has reason managing underwriter or underwriters, AHA or AIG, as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, AHA or AIG reasonably request to believe that be included therein relating to the representations and warranties sale of the Company contained in Registrable Securities, including without limitation, information with respect to the amount of Registrable Securities being sold to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any agreement other terms of the underwritten offering (including any whether such underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xicommitment is on a firm commitment or best efforts basis) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment promptly upon notice of the offering would reasonably matters to be expected incorporated in such prospectus supplement or post-effective amendment;
(f) furnish to yield gross proceeds (prior AIG, to deducting underwriting discounts each selling Holder, and commission and offering expenses) to such Stockholder of each managing underwriter or underwriters, without charge, at least one signed copy of the Minimum Amount.Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference therein);
(bg) The Company may require deliver to AIG, each selling Stockholder Holder and each distributor underwriter, if any, without charge, as many copies (including an electronic copy) of Registrable Shares the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as to which any registration is being effected to furnish to such Persons may reasonably request; the Company information regarding such Person and the distribution of such securities as the Company may from time consents to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto by each of the selling Holders and each underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or to cause any such document to become amendment or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due supplement thereto;
(h) prior to any refusal public offering of Registrable Securities, use its reasonable efforts to register or qualify or cooperate with AIG, the selling Holders, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as AIG, any selling Holder or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein Registrable Securities covered by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed Registration Statement; provided that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall will not be required to file qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with AIG, the selling Holders and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of the Registrable Securities to be sold; and enable such Registrable Securities to be in such denominations and registered in such names as AIG, the selling Holder or the managing underwriter or underwriters, if any, may request at least two business days prior to any delivery of Registrable Securities;
(j) 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, federal, state or local, 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;
(k) except as permitted by Section 2(a)(iii), if any fact contemplated by paragraph (c)(vi) above shall exist, prepare a post-effective amendment or supplement to the Registration Statement or include the related Prospectus or any document incorporated therein by reference or file any other required document so that the Prospectus, as thereafter delivered to the purchasers of the Registrable Shares in Securities, will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(l) use its reasonable efforts to cause all Registrable Securities covered by the Registration Statement unless it has received from to be listed on each Stockholder participating securities exchange on which the Common Stock is then listed, if any;
(m) enter into such customary agreements (including a customary underwriting agreement with the underwriter or underwriters, if any) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the Registrable Securities are to be sold in an underwritten offering:
(i) make such representations and warranties to AIG, the selling Holders of such Registrable Securities and the underwriter or underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings of equity securities;
(ii) cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated, in the applicable Demand Registrationcase of an underwritten offering, Piggyback Registration or Shelf Registrationthe date of delivery of any Registrable Securities sold pursuant thereto which counsel and opinions (in form, at least five days prior scope and substance) shall be reasonably satisfactory to the anticipated filing managing underwriter or underwriters, if any, AIG and the selling Holders, addressed to AIG, each selling Holder and each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten offerings of common stock and such other matters as may be reasonably requested by AIG or the selling Holders or the appointed representative of or counsel to AIG and the selling Holders (it being agreed that the matters to be covered by such opinions shall include and shall cover both the date of the first contract to sell the Registrable Securities and the date of delivery of any Registrable Securities sold pursuant thereto);
(iii) cause to be delivered, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto, letters from the Company’s independent certified public accountants addressed to AIG, each selling Holder and each underwriter, if any, in customary form and covering such financial and accounting matters as are customarily covered by letters of independent certified public accountants delivered in connection with underwritten public offerings of common stock;
(iv) if an underwriting agreement is entered into, the same shall provide for indemnification of the underwriters by the Company in customary form; and
(v) the Company shall deliver such documents and certificates as may be reasonably requested by AIG, any Holder selling Registrable Securities or the managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company in connection with such offering. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(n) make available for inspection by a representative or representatives of AIG or the selling Holders, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by AIG or such selling Holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information regarding such Stockholder reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided that AIG shall not, and shall cause its Affiliates and representatives having access to information of the Company that is either oral or in writing and that is confidential or proprietary (“Confidential Information”) not to, disclose any Confidential Information; provided, however, that AIG may disclose Confidential Information to the extent permitted by applicable Law: (i) to its representatives on a need-to-know basis in connection with the exercise of rights or the performance of obligations under this Agreement, provided that such representatives are informed of the confidential nature of such information and made aware of the provisions of this 4(n); (ii) to the extent reasonably necessary in connection with any action or in any dispute with respect to this Agreement; (iii) to the extent such information is required to be disclosed by applicable Law, Governmental Order or Governmental Authority (including in any report, statement, testimony or other submission to a Governmental Authority) or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to AIG or AHA in the course of any litigation, arbitration, mediation, investigation or administrative proceeding; (iv) to the extent any such information is or becomes generally available to the public other than as a result of disclosure by AIG, AHA or any of their Subsidiaries or any of their Affiliates or representatives; and provided further, however, (A) AIG and AHA may disclose Confidential Information related to the Company to AIG’s and AHA’s representatives who need to know such information for the purpose of evaluating, monitoring or taking any other action with respect to AIG’s and/or AHA’s investment in the Company and its Subsidiaries, and (B) AIG and AHA may disclose Confidential Information delivered to them by the officers designated by them, respectively, to receive the information contemplated by Section 5.4 of the Stockholders Agreement to each other, their respective Affiliates and their respective Representatives, provided that in the cases of clauses (A) and (B) above, such representatives are informed of the confidential nature of such information and made aware of the provisions of this Section 4(n). In the event that AIG or AHA becomes required (based on advice of counsel) by deposition, interrogatory, request for documents subpoena, civil investigative demand or similar judicial or administrative process or in connection with a report, statement, testimony or other submission to be made to any Governmental Authority to disclose any Confidential Information, the disclosing party shall provide the Company, to the extent reasonably practicable, with prior written notice of such requirement, and, to the extent reasonably practicable, cooperate with the Company (at the Company’s expense) to obtain a protective order or similar remedy to cause such Confidential Information not to be disclosed; provided, however, that none of AIG, AHA or any of their respective Affiliates is required to achieve effectiveness provide such prior written notice with respect to any disclosure to the FRBNY. In the event that such protective order or other similar remedy is not obtained, the disclosing party shall furnish only that portion of such Registration Statement.the Confidential Information that it reasonably believes is required to be disclosed and shall exercise its commercially reasonable efforts (at the Company’s expense) to obtain assurance that confidential treatment will be accorde
Appears in 2 contracts
Sources: Registration Rights Agreement (Transatlantic Holdings Inc), Registration Rights Agreement (Transatlantic Holdings Inc)
Registration Procedures. In connection with the Company's registration obligations hereunder, the Company shall:
(a) Whenever Prepare and file with the Commission on or prior to the Filing Date, a Stockholder requests Registration Statement on Form S-3 (or provides notification 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 herewith, or, in connection with an Underwritten Offering hereunder, such other form available to the Company of joining in a request that any Registrable Shares be registered pursuant and reasonably acceptable to this Article Vthe Holders or, if the Company elects, a pre-effective amendment to the Company's Registration Statement on Form S-3 currently in registration) which shall use reasonable best efforts contain the "Plan of Distribution" attached hereto as Annex A (except if otherwise directed by the Holders), and cause the Registration Statement to effect, as soon as practical become effective and remain effective as provided in this Article Vherein; provided, however, that not less than five (5) Business Days prior to the registration and filing of the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoRegistration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall, as soon as practical as provided herein:
(i) subject furnish to the other provisions of this Article V, use reasonable best efforts to prepare Holders and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if anyunderwriters, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable review and comment of such counselHolders and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such other documents reasonably requested by such counselinquiries as shall be necessary, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation reasonable opinion of respective counsel to such Registration Statement and each Prospectus included therein Holders and such other opportunities underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such the Registration Statement or Prospectus, any such Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (Holders or their counsel) or the any managing underwriter(s), if anyunderwriters, shall reasonably object, in writing, object on a timely basis.
(i) Prepare and file with the Commission such amendments, unlessincluding post-effective amendments, in to the opinion of the Company’s counsel, such filing is Registration Statement as may be necessary to comply with keep the Registration Statement continuously effective as to the applicable law;
(ii) use reasonable best efforts to Registrable Securities for the Effectiveness Period and prepare and file with the SEC Commission such amendments 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 supplements as so supplemented or amended to such 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 Prospectus used Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in connection therewith as may be necessary to comply all material respects with the applicable requirements provisions of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Exchange Act with respect to the disposition of all the Shares Registrable Securities covered by such the Registration Statement during such 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 as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and any managing underwriters as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five (5) days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Business Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a "review" of such Registration Statement;
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 the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iii) use reasonable best efforts to obtain of the withdrawal issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any Registration Statement, or all of the Registrable Securities or the lifting initiation of any Proceedings for that pur pose; (iv) if at any time any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliver, without charge, initiation or threatening of any Proceeding for such number of copies of the preliminary purpose; and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which that makes any statement made in the Prospectus included in such Registration Statement contains an or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omits a 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, at the request of such Stockholder, the Company shall use .
(d) Use its reasonable best efforts to prepareavoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any managing underwriter or the Holders of the Registrable Securities to be sold in connection with an Underwritten Offering, (i) (subject to a permitted Blackout Period) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as such managing underwriters and such Holders reasonably agree should be included therein, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicalpracticable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the opinion of counsel for the Company, violate applicable law or be materially detrimental to the business prospects of the Company.
(f) Furnish to each Holder and any managing underwriters, 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 be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and any underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and any underwriters 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 or cooperate with the selling Holders and any underwriters 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 Holder or underwriter requests in writing, to 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 Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any taxation in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders and any managing underwriters 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 applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such managing underwriters or Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 3(c)(vi), as promptly as reasonably possible, prepare a supplement or amendment amendment, including a post-effective amendment, to such the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered to any prospective purchasers of such Registrable Sharesdelivered, neither the Registration Statement nor such Prospectus shall not will contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading misleading.
(k) Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the Nasdaq SmallCap Market ("NASDAQ") and any other subsequent market, if any, on which notice shall notify similar securities issued by the selling Stockholders only of the occurrence of such an event Company are then listed as and shall provide no additional information regarding such event when required pursuant to the extent such information would constitute material non-public information);Convertible Note.
(viil) in In the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf RegistrationOffering, enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in Underwritten Offerings) and take all such other customary and reasonable actions as the in connection therewith (including those reasonably requested by any managing underwriters and the Holders of such offering may request a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making is entered into, (i) make such representations and warranties to the holders of such Registrable Shares Holders and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and, if true, and confirm the same if and when requested;
; (viiiii) in obtain and deliver copies thereof to each Holder and the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, of opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and updates thereof addressed to each selling holder of Registrable Shares (unless Holder and each such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (underwriter, in form, scope and substance) shall be substance reasonably satisfactory to the any such managing underwriter(s), if any, underwriters and counsels Special Counsel to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, 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 counsel Special Counsel and underwriters; (iii) 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, use its best reasonable efforts to 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 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 is, or is required to be, included in the Registration Statement), addressed to the Company in form and substance as are customary in connection with Underwritten Offerings; (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, than those set forth in Section 5 (or such other provisions and procedures acceptable to the managing underwriters, if any, and holders of a majority of Registrable Securities participating in such Underwritten Offering); and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold, and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause 3(l)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
(m) Make available for inspection by the selling Holders, any representative of such Holders, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holders or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statement; provided, however, that such records and other any information provided under clauses (A) and (B) above shall be subject to such confidential treatment as that is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued determined in good faith by the Company are then listed;
(x) provide in writing to be of a transfer agent and registrar for all such Registrable Shares not later than confidential nature at the effective date time of delivery of such Registration Statement andinformation shall be kept confidential by such Persons, a reasonable time before any proposed sale unless (i) disclosure of Registrable Shares pursuant such information is required by court or administrative order or is necessary to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares respond to be sold;
inquiries of regulatory authorities; (xiii) make such information becomes generally available to Stockholders the public other than as a consolidated earnings statement result of a disclosure or failure to safeguard by such Person; or (which need not be auditediii) for such information becomes available to such Person from a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any source other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to than the Company and such source is not known by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease such Person to be true and correct. For bound by a confidentiality agreement with the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountCompany.
(bn) Comply with all applicable rules and regulations of the Commission.
(o) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected Holder to furnish to the Company such information regarding such Person and the distribution of such securities Registrable Securities and 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 time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees , without any penalty otherwise provided by having its Shares treated as this Agreement, the Registrable Shares hereunder that, upon being advised in writing by Securities of any such Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant Registration Statement refers to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 Holder by name or otherwise as the holder of the Exchange Act) until it is advised in writing by the Company that the use any securities of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Company all copies, other than permanent file copies Securities Act or any similar Federal statute then in each Stockholder’s possession, force) the deletion of the Prospectus covering reference to such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined Holder in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event Statement filed or prepared subsequent to the Company’s obligations time that such reference ceases to be required. Each Holder covenants and agrees that (i) it will not sell any Registrable Securities under this Section 5.07 shall continue with respect to such offering the Registration Statement until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.rec
Appears in 2 contracts
Sources: Registration Rights Agreement (Venus Exploration Inc), Registration Rights Agreement (Exco Resources Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered Securities under the Securities Act and in connection with any distribution of Registered Securities pursuant thereto as provided in this Agreement (including any sale referred to this Article Vin any Take-Down Notice), the Company shall use reasonable best efforts as promptly as reasonably practicable, subject to effect, as soon as practical as provided in the other provisions of this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinAgreement:
(i) subject to the other provisions of this Article VSection 5.01(a), use reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Article V; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice (but excluding amendments and supplements that do nothing more than name Selling Holders (as defined below) and provide information with respect thereto), the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriter(s), and such other documents reasonably requested by any such counsel, including any comment letter letters from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriter(s), if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered underwritten offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriter(s) and their counsel) the Company’s books and records, officers, accountants and other advisors. The Company shall , provided that the same is not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect disruptive to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion business of the Company’s counsel, ; provided that such filing persons shall first agree in writing with the Company that any information that is necessary reasonably designated by the Company as confidential at the time of delivery shall be kept confidential by such persons subject to comply with applicable lawcustomary exceptions;
(ii) use reasonable best efforts subject to Section 5.02, prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementthis Article V;
(iii) use reasonable best efforts if requested by the lead managing underwriter(s), promptly include in a prospectus supplement such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to obtain permit the withdrawal intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any order suspending the effectiveness of any Registration Statementactions under this Section 5.03(a)(iii) that are not, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesopinion of counsel for the Company, in compliance with applicable law;
(iv) deliverfurnish to the Selling Holders and each underwriter, without chargeif any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders and underwriter(s), if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holders;
(v) if such Registrable Securities are Class A Shares, use reasonable best efforts to register cause such Class A Shares to be listed on NASDAQ (or qualify such Registrable if the Class A Shares under are no longer listed on NASDAQ, on such other national securities or blue sky laws exchange on which the Class A Shares may then be listed), provided that, notwithstanding any other provision of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that Agreement, the Company will shall not be required to (A) qualify generally seek or obtain any shareholder approval in order to do business satisfy any stock exchange requirements in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any connection with such jurisdiction or (C) consent to general service of process in any such jurisdiction)listing;
(vi) notify each selling Stockholder use reasonable efforts to provide and each distributor cause to be maintained a transfer agent and registrar (which may be the Company) for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(vii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to such Stockholder, Registration Statement or the prospectus; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions clause (including provisions for indemnification, lockups, opinions of counsel and comfort lettersF), and take all that such other customary and notice need not include the nature or details concerning such event;
(viii) use reasonable actions as efforts to obtain the managing underwriters withdrawal of any order suspending the effectiveness of such offering may request Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in order any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be required to facilitate (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(ix) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Shares, including, causing its officers to use Securities and their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm respective counsel in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares filings required to be listed on each primary securities exchange (if any) on which securities of made with the same class issued by the Company are then listedFinancial Industry Regulatory Authority, Inc.;
(x) provide a transfer agent and registrar for all prior to any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the Selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under the applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not later than the effective date of such Registration Statement and, be required to (A) qualify generally to do business as a reasonable time before foreign corporation or as a dealer in securities in any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates jurisdiction wherein it would not but for the Registrable Shares requirements of this clause (x) be obligated to be soldso qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xi) make generally available use reasonable efforts to Stockholders cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a consolidated earnings statement (transferee pursuant to the Registration Statements, which need not certificates or book-entry securities shall be audited) for a period free, to the extent permitted by applicable law, of 12 months beginning all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as soon as reasonably practicable after required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the end transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legends upon sale by the holder of such period, which earnings statement shall satisfy shares of Registrable Securities under the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunderRegistration Statement; and
(xii) promptly notify agrees with each selling Stockholder and the managing underwriters holder of Registrable Securities that, in connection with any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus Offering or any Prospectus supplement or any post-effective amendment other resale pursuant to the Registration Statement has been filed andin accordance with the terms hereof, with respect it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Registration Statement or any post-effective amendmentCompany), when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements including using reasonable efforts to procure customary legal opinions, including a 10b-5 letter, and auditor “comfort” letters, and shall furnish to the Registration Statement or the Prospectus or for any additional information regarding Purchaser upon its request such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountdocuments.
(b) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution and delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 5.03(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (MDC Partners Inc), Securities Purchase Agreement (MDC Partners Inc)
Registration Procedures. (a) Whenever a Stockholder Covered Person requests or provides notification to the Company of joining in a request that any Registrable Shares Securities be registered pursuant to this Article VSection 2.2 or 2.3 or in respect of any Fifth Anniversary Registration pursuant to Section 2.1, subject to the provisions of such Sections, the Company shall use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereofthereof as promptly as practicable, and, pursuant thereto, the Company shall, as soon as practical as provided hereinin connection with any such request:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to The Company shall as expeditiously as reasonably practicable prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, registration statement on any form for which the Company then qualifies or that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request counsel for a Demand Registration, the Company shall furnish or otherwise make deem appropriate and which form shall be available to for the holders sale of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed Securities to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Shares covered by such Registration Statement during such period registered thereunder in accordance with the intended methods method of disposition set forth distribution thereof, and use its commercially reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 40 days, or in the case of a Fifth Anniversary Registration, until all of the Registrable Securities of the Covered Persons included in such Registration Statement;registration statement (each, a “Registering Covered Person”) shall have actually been sold thereunder.
(iiib) use reasonable best efforts Prior to obtain filing a registration statement or prospectus or any amendment or supplement thereto, the withdrawal of any order suspending the effectiveness of any Registration StatementCompany shall, or the lifting of any suspension if requested, furnish to each participating Covered Person and each underwriter, if any, of the qualification or exemption from qualification Registrable Securities covered by such registration statement copies of any Registrable Shares for sale in any jurisdiction in such registration statement as proposed to be filed, and thereafter the United States;
(iv) deliverCompany shall furnish to such Covered Person and underwriter, without chargeif any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as each selling Stockholder such Covered Person or underwriter may reasonably request in order to facilitate the disposition of the Registrable Shares Securities owned by such Covered Person. The Covered Person shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Covered Person and the Company shall use its all commercially reasonable efforts to comply with such request, provided, however, that the Company shall not have any obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to contain an untrue statement of each selling Stockholder a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, the Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement registration statement during the applicable period in conformity accordance with the requirements intended methods of disposition by the Registering Covered Persons thereof set forth in such registration statement or supplement to such prospectus and (iii) promptly notify each Registering Covered Person holding Registrable Securities Act;
(v) use covered by such registration statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable best efforts to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or “blue sky sky” laws of such U.S. jurisdictions in the United States as each selling Stockholder any Registering Covered Person holding such Registrable Securities reasonably (in light of such Covered Person’s intended plan of distribution) requests and continue (ii) cause such registration Registrable Securities to be registered with or qualification in effect in approved by such jurisdictions for other governmental agencies or authorities as long as the applicable Registration Statement may be required necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to be kept effective under this Agreement (enable such Covered Person to consummate the disposition of the Registrable Securities owned by such Covered Person, provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 2.5(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);.
(vie) The Company shall immediately notify each selling Stockholder and each distributor of Registering Covered Person holding such Registrable Shares identified Securities covered by such Stockholderregistration statement, at any time when a Prospectus prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributorAct, of the occurrence of any an event as a result requiring the preparation of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus prospectus so that, as thereafter delivered to any prospective the purchasers of such Registrable SharesSecurities, such Prospectus shall prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading (which notice shall notify and promptly prepare and make available to each such Covered Person and file with the selling Stockholders only of the occurrence of SEC any such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);supplement or amendment.
(viif) The Company shall select an underwriter or underwriters in connection with any Public Offering. In connection with any Public Offering, the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, Company shall enter into customary agreements (including an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), in customary form) and take such all such other customary and reasonable actions as the managing underwriters of such offering may request are reasonably required in order to expedite or facilitate the disposition of such Registrable SharesSecurities in any such Public Offering, including, causing its officers to use their reasonable best efforts to support including the marketing engagement of a “qualified independent underwriter” in connection with the qualification of the Registrable Shares covered by underwriting arrangements with the Registration Statement NASD.
(including making members g) Subject to the execution of senior management of confidentiality agreements satisfactory in form and substance to the Company available at in the exercise of its good faith judgment, the Company will give to each Registering Covered Person, its counsel and accountants (i) reasonable times and places customary access to participate in “road-shows” that the managing underwriter determines are necessary its books and records and (ii) such opportunities to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to discuss the business of the Company and with its material Subsidiariesdirectors, officers, employees, counsel and the Registration Statementindependent public accountants who have certified its financial statements, Prospectus as shall be appropriate, in the reasonable judgment of counsel, to such Registering Covered Person, to enable them to exercise their due diligence responsibility.
(h) The Company shall use its commercially reasonable efforts to furnish to each Registering Covered Person and documentsto each such underwriter, if any, incorporated a signed counterpart, addressed to such Covered Person or deemed underwriter, of (i) an opinion or opinions of counsel to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (Bii) cause a comfort letter or comfort letters from the Company’s officers independent public accountants, each in customary form and employees to supply information reasonably requested by covering such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards matters of the accounting professionkind customarily covered by opinions or comfort letters, as the case may be, as a majority of the Registering Covered Persons therefor reasonably requests.
(i) and (D) cause the Company’s outside counsel to Each such Covered Person registering securities under this Article II shall promptly furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory writing to the managing underwriter(s), if any, and counsels to Company such information regarding the selling holders distribution of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing and such other information as may be legally required or advisable in connection with such registration.
(cj) Each Stockholder The Covered Person agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in Section 2.5(e), such Covered Person shall forthwith discontinue disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of the registration statement covering such Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to Securities until such time and that complies with Rule 10b5-1 Covered Person’s receipt of the Exchange Act) until it is advised in writing by the Company that the use copies of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as prospectus contemplated by Section 5.07(a)(vi2.5(e), and, if so directed by the Company, each Stockholder will such Covered Person shall deliver to the Company all copies, other than any permanent file copies then in each Stockholdersuch Covered Person’s possession, of the Prospectus most recent prospectus covering such Registrable Shares current Securities at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that . If the Company shall not have any obligations under this give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.07 at any time on or after 2.5(a)) by the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior number of days during the period from and including the date of the giving of notice pursuant to Section 2.5(e) to the Registration Termination Date, in which event date when the Company’s obligations under this Section 5.07 Company shall continue with respect make available to such offering until it is so completed (but not more than 60 days after Covered Person a prospectus supplemented or amended to conform with the commencement requirements of the offeringSection 2.5(e).
(gk) Notwithstanding anything The Company shall use its commercially reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the contrary in this Article V, Registrable Securities are then listed or traded.
(l) The Company shall have appropriate officers of the Company shall not be required (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to file a Registration Statement or include obtain ratings for any Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior Securities and (iii) otherwise use their commercially reasonable efforts to the anticipated filing date of the Registration Statement, information regarding such Stockholder cooperate as reasonably requested by the Company and required to achieve effectiveness underwriters in the offering, marketing or selling of such Registration Statementthe Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company of joining in a request Holder has requested that any Registrable Shares Securities be registered pursuant to this Article VAgreement, the Company shall use reasonable best efforts will promptly take all such actions as may be necessary or desirable to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, as soon as practical as provided hereinwill promptly:
(ia) subject with respect to the other provisions of this Article Va request for a Form S-3 Registration, use reasonable its best efforts to prepare and file with the SEC SEC, not later than 60 days after receipt of such request (which 60-day period may be extended by the Company for up to an additional 30 days if during such 60-day period the Company is engaged to a significant extent in negotiations looking toward its participation in a material merger, acquisition or other form of business combination and if, by reason of such negotiations, the Company is not in a position to timely prepare and file the Registration Statement with respect Statement) a Form S-3 Registration Statement, and use all reasonable efforts to such Registrable Shares and cause such Registration Statement to become effective effective; the Company shall not file any Registration Statement pursuant to Section 4 or any amendment thereto or any Prospectus or any supplement thereto (unless it is automatically effective upon filing)including such documents incorporated by reference) to which the Holders or the underwriters, providedif any, however, that shall reasonably object in light of the requirements of the Securities Act or any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (excluding documents that would be incorporated by reference or deemed to be incorporated by reference in a therein filed after the effectiveness of the Registration Statement filed pursuant to a request for a Demand RegistrationStatement), the Company shall will, five business days prior to filing, furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel Holders and the managing underwriter(s)underwriters, if any, copies of all such documents in substantially the form proposed to be filed (including exhibits theretodocuments incorporated therein by reference), which documents will be subject to enable the reasonable review Holders and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters, if any, to review such documents prior to the filing thereof, and the Company shall make such reasonable changes thereto (including changes to documents incorporated by reference) as may be reasonably objectrequested by the Holders and the managing underwriter or underwriters, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawif any;
(iic) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with keep the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for a period of not less than 180 days or such longer period as is required for the relevant intended method of distribution, or such shorter period required hereunder, but no longer than is necessary to complete the distribution of the Shares which will terminate when all Registrable Securities covered by such Registration StatementStatement have been sold or withdrawn; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in such Registration StatementStatement or supplement to the Prospectus;
(iiid) use reasonable best efforts notify the Holders and the managing underwriters, if any, promptly, and confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to obtain the withdrawal Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the SEC of any stop order suspending the effectiveness of any the Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (4) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any the Registrable Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (5) of the happening of any event which makes any statement made in the United States;
(iv) deliverRegistration Statement, without chargethe Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, such number of copies of the preliminary and final Prospectus and or any supplement thereto as each selling Stockholder may reasonably request document incorporated therein by reference in order to facilitate make the disposition statements therein not misleading, so that, in the case of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company Statement, it will not be required to (A) qualify generally to do business in contain any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(f) as promptly as practicable after the filing with the SEC of any document which is incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement) provide copies of such document to counsel to the Holders and to the managing underwriters, andif any;
(g) furnish to the Holders and each managing underwriter, if any, without charge, at least one signed copy of the request Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and a reasonable number of conformed copies of all such documents;
(h) in the event of an underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such Stockholderoffering; provided, that, each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(i) deliver to the Holders and the underwriters, if any, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company shall consents to the use of the Prospectus or any amendment or supplement thereto by the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(j) prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to prepareregister or qualify or cooperate with the Holders and the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as soon any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(k) cooperate with the Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as practicalthe managing underwriters, if any, or the Holders may request at least two business days prior to any such sale of Registrable Securities;
(l) use its reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(m) upon the occurrence of any event contemplated by paragraph (d)(5) above, prepare a supplement or post-effective amendment to such the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesSecurities, such the Prospectus shall will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)misleading;
(viin) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and use its reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the cause all Registrable Shares Securities covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange or authorized to be quoted on the National Association of Securities Dealers Automated Quotation ("NASDAQ") National Market if any) on which similar securities of the same class issued by the Company are then listedso listed or authorized, if requested by the Holders or the managing underwriters, if any;
(xo) provide a transfer agent and registrar for all Registrable Securities;
(p) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as the Holders or the managing underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Shares not later than Securities;
(q) make available for inspection during normal business hours by the effective date of such Registration Statement andHolders, a reasonable time before any proposed sale of Registrable Shares underwriter participating in any disposition pursuant to a such Registration Statement, provide and any attorney, accountant or other agent retained by any such Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the transfer Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with printed certificates for such Registration Statement; provided, that any records, information or documents that are designated by the Registrable Shares to Company in writing as confidential shall be soldkept confidential by such Persons;
(xir) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to Stockholders its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a consolidated earnings statement firm or best efforts underwriting offering, and (which need not be audited2) for a period beginning with the first month of 12 months beginning the Company's first fiscal quarter commencing after the effective date of the Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement statements shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any precover said 12-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correctmonth periods. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected the Holders to furnish to the Company such information and documents regarding such Person and the distribution of such securities the Registrable Securities and the Holders as the Company may from time to time reasonably request in writing in connection with writing. The Holders each agree by acquisition of such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder Securities that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event pursuant to of the kind described in Section 5.07(a)(vi)5(d)(5) hereof, each Stockholder such Holder will immediately forthwith discontinue (and direct any other Persons making offers and sales disposition of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to Securities until such time and that complies with Rule 10b5-1 Holder's receipt of the Exchange Actcopies of the supplemented or amended Prospectus contemplated by Section 5(m) hereof, or until it is advised in writing (the "ADVICE") by the Company that the use of the Prospectus may be resumed resumed, and is furnished with a supplemented has received copies of any additional or amended Prospectus as contemplated supplemental filings which are incorporated by Section 5.07(a)(vi)reference in the Prospectus, and, if so directed by the Company, each Stockholder Holder will, or will request the underwriters (if any) to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in each Stockholder’s such Holder's possession, of the Prospectus covering such Registrable Shares Securities current at the time of receipt of such notice. If the Company shall give such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained mentioned in Section 5(c) hereof shall automatically be extended by the amount number of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare days during the period from and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under including the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness giving of such Registration Statementnotice pursuant to Section 5(d)(5) to and including the date when the Holders shall have received the copies of the supplemented or amended prospectus contemplated by Section 5(m) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Larscom Inc), Registration Rights Agreement (Larscom Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Company is required to register the offer and sale under the Securities Act of any Registrable Securities pursuant to the Company terms of joining in a request that any Registrable Shares be registered pursuant to this Article VAgreement, the Company shall use reasonable best efforts take all such actions as are reasonably necessary to effectcause such registration to be effected as expeditiously as possible, as soon as practical as provided in this Article V, including the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinfollowing:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on any form which shall be available for the offer and sale of the Registrable Securities by the Holders in accordance with respect to the intended method or methods of distribution of such Registrable Shares Securities (including, without limitation, a Partner Distribution), and use its reasonable best efforts to cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that no later than ten (10) days before filing a Registration Statement or Prospectus or any amendments or supplements thereto and(including, to the extent reasonably practicablewithout limitation, documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will shall be subject to the reasonable review and comment comments of such counselHolders, counsel and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsmanaging underwriters. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including including, without limitation, such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Holders of a majority 66 2/3% of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s Company and its counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement;, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; provided, however, that any Holder of Registrable Securities that has been included in a Registration Statement for a Shelf Registration may request that such Holder’s Registrable Securities be removed from such Registration Statement, in which event the Company shall promptly either withdraw such Registration Statement or file a post-effective amendment to such Registration Statement removing such Registrable Securities.
(c) Notify each Holder of Registrable Securities included in a Registration Statement, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment related to such Registration Statements has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any notice from the SEC that there will be a review of such Registration Statement and promptly provide such Holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by the Company in connection therewith, (iii) use reasonable best efforts to obtain the withdrawal of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to such Registration Statement or related Prospectus or for additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of any such Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (v) if at any time the representations and warranties of the Company contained in any applicable agreement (including, without limitation, any underwriting agreement) contemplated by Section 5(o) below cease to be true and correct, (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of such Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
initiation or threatening of any proceeding for such purpose, and (ivvii) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the request statements therein, in light of such Stockholderthe circumstances under which they were made, the Company shall use not misleading.
(d) Use its reasonable best efforts to prepareobtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriters, if any, or any Holder of Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicalpracticable after the Company has received such request.
(f) Furnish or make available to each Holder of Registrable Securities included in a Registration Statement, its counsel and each managing underwriter, if any, without charge, at least five (5) conformed copies of such Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested by such holder, counsel or underwriter).
(g) Deliver to each Holder of Registrable Securities included in a Registration Statement, its counsel and the underwriters, if any, without charge, as many copies of the related Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of such Registrable Securities; and the Company, subject to the last paragraph of this Section 5, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of such Holders and the underwriters, if any, in connection with the offer and sale of such Registrable Securities.
(h) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Holders of such Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities included in a Registration Statement and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing such Registrable Securities, after receiving written representations from each such Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with such Registration Statement, and enable certificates representing such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) Business Days prior to any sale of such Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to deliver such certificates.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of the business of the Holder of such Registrable Securities, in which case the Company will cooperate in all reasonable respects with the filing of such registration and the granting of such approvals, as may be necessary to enable such Holders or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 5(c)(vii) above, prepare a supplement or post-effective amendment to such a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesSecurities being sold thereunder, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading misleading.
(which notice shall notify l) Prior to the selling Stockholders only effective date of a Registration Statement, provide a CUSIP number for the Registrable Securities being offered and sold thereunder.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by a Registration Statement from and after a date not later than the effective date of such Registration Statement.
(n) Use its reasonable best efforts to cause all Registrable Securities covered by a Registration Statement to be authorized to be quoted on the NASDAQ Global Market or listed on a national securities exchange if shares of the occurrence particular class of Registrable Securities are at that time quoted on the NASDAQ Global Market or listed on such an event and shall provide no additional information regarding such event to exchange, as the extent such information would constitute material non-public information);case may be.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand RegistrationEnter into such agreements (including, a Piggyback Registration or an S-3 Shelf Registrationwithout limitation, enter into an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the managing underwriters Holders of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing a majority of the Registrable Shares covered by the Securities included in a Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information those reasonably requested by the managing underwriters underwriters, if any) to expedite or facilitate the Prospectusoffer and sale of such Registrable Securities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not such Registration Statement includes an underwritten offering, (i) make such representations and warranties to the holders Holders of the Registrable Securities included in such Registrable Shares Registration Statement and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) furnish to such Holders opinions of counsel and a negative assurance letter to the Company and updates thereof (which counsel, opinions and letter (in form, scope and substance, in the case of an Underwritten Offering in which each selling Stockholder participates pursuant such opinions and such letter) shall be reasonably satisfactory to a Demand Registrationsuch Holders, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents if any, and financial counsels to such Holders), addressed to each such Holder and other records each of the Company underwriters, if any, covering the matters customarily covered in opinions and its Subsidiaries negative assurance letters requested in underwritten offerings and controlled Affiliates, (B) cause the Company’s officers and employees to supply information such other matters as may be reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offeringHolders, counsel and underwriters, (Ciii) make obtain “cold comfort” letters and updates thereof from the Company’s Auditor available independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for any which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and Registration Statement, addressed to each selling holder of Registrable Shares such Holder (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause each of the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, such letters to be in customary form and counsels covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, which form and substance shall be reasonably acceptable to such Holders, (iv) obtain a report of the independent petroleum engineers of the Company relating to the selling holders oil and natural gas reserves of the Registrable Shares) Company, such report to such underwriters be in customary form and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested such reports, (v) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in underwritten offerings Section 7 hereof with respect to all parties to be indemnified pursuant to said Section and (vi) deliver such other matters documents and certificates as may be reasonably requested by any such Holder, such Holder’s counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 5(o)(i) above and to evidence compliance with the conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Make available for inspection by the Holders of Registrable Securities included in a Registration Statement, any underwriter participating in an offer and sale of such Registrable Securities, if any, and any attorneys or accountants retained by such Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that such records and other any information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current not publicly available at the time of receipt delivery of such notice, provided, however, that the time periods under this Article V with respect information shall be kept confidential by such Persons (other than disclosure by such Persons to the length such Persons’ respective affiliates) unless (i) disclosure of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder such information is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement by court or any amendment administrative order or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.other legal
Appears in 2 contracts
Sources: Registration Rights Agreement (Warburg Pincus Private Equity IX, L.P.), Registration Rights Agreement (Laredo Petroleum Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided herein:possible (to the extent applicable, in the case of a Takedown):
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (excluding documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including excluding such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1, 2.2 or 2.3 to which the holders of a majority of the Registrable Shares covered by any Holder (if such Registration Statement (or their includes Registrable Securities of such Holder), its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement;, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus so that, in the United States;case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ivd) deliverUse its reasonable best efforts to avoid the issuance of any order suspending the effectiveness of a Registration Statement or any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, or, if issued, to obtain the withdrawal or lifting of any such order or suspension at the reasonably earliest practicable date.
(e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as reasonably practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to Section 2.5(b), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any Selling Holder or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v)then so qualified, (Bii) subject itself to material taxation in any such jurisdiction where it is not then so subject, or (Ciii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify each selling Stockholder Cooperate with the Selling Holders and each distributor the managing underwriter(s), if any, to facilitate the timely preparation and delivery of such certificates (not bearing any legends) representing Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such distributorSelling Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event as contemplated by Section 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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 the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(l) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(m) Use its reasonable best efforts to preparecause all Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viin) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession or such action is otherwise inconsistent with printed certificates for the then current practice in the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures, except as otherwise agreed by the Company and Holders of a majority of the Registrable Shares Securities being sold in connection therewith and the managing underwriter(s), if any, and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be sold;done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(xio) Upon execution of a customary confidentiality agreement, make generally available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, managing underwriter(s), attorney or accountant in connection with such Registration Statement.
(p) Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange, and make available to Stockholders a consolidated earnings statement its security holders, as soon as reasonably practicable (which need but not be auditedmore than 18 months) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such periodregistration statement, which an earnings statement which shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum AmountAct.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Master Commutation, Release and Restructuring Agreement (Security Capital Assurance LTD), Registration Rights Agreement (Xl Capital LTD)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the obligations of the Company with respect to the Company of joining in a request that any Registrable Shares be registered Registration Statements pursuant to this Article VSections 2(a) and 2(b) hereof, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinto:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC Commission a Registration Statement or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant time period specified in Section 2 hereof on the appropriate form under the Securities Act, which form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Notes by the selling Holders thereof and, in the case of an Exchange Offer, be available for the exchange of Registrable Notes and (iii) shall comply as to form in all material respects with respect the requirements of the applicable form and include all financial statements required by the Commission to such Registrable Shares and be filed therewith; use its reasonable best efforts to cause such Registration Statement to become effective (unless it is automatically and remain effective upon filing), and usable for resales in accordance with Section 2 hereof and to promptly notify Holders of such effectiveness; provided, however, that if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes, before filing a any Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall furnish or otherwise make available to and afford the holders Holders of the Registrable Shares Notes and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, a reasonable opportunity (which shall be at least four Business Days) 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 (including exhibits thereto), which documents will be subject to the reasonable review filed; and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with in respect to a Demand Registration to of which the holders Holders must be afforded an opportunity to review prior to the filing of a majority of such document if the Registrable Shares covered by Majority Holders or such Registration Statement (or Participating Broker-Dealer, as the case may be, their counsel) counsel or the managing underwriter(s)underwriters, if any, shall reasonably object, object in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawmanner;
(iib) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period Effectiveness Period or the Applicable Period, as the case may be and cause each Prospectus to be supplemented, if so determined by the Company or requested by the Commission, by any required hereunder, but no longer than is necessary prospectus supplement and as so supplemented to complete be filed pursuant to Rule 424 (or any similar provision then in force) under the distribution of the Shares covered by such Registration StatementSecurities Act, and deliver copies thereof to the Holders promptly after its preparation and filing with the Commission; and comply with the applicable requirements provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all the Shares securities covered by such each Registration Statement during such period the Effectiveness Period or the Applicable Period, as the case may be, in accordance with the intended method or methods of disposition set forth distribution by the selling Holders thereof described in such Registration Statementthis Agreement (including sales by any Participating Broker-Dealer);
(iiic) use reasonable best efforts to obtain in the withdrawal case of any order suspending a Shelf Registration, (i) notify each Holder of Registrable Notes included in the effectiveness of any Shelf Registration Statement, or at least three Business Days prior to filing, that a Shelf Registration Statement with respect to the lifting Registrable Notes is being filed and advising such Holder that the distribution of any suspension Registrable Notes will be made in accordance with the method selected by the Majority Holders; (ii) furnish to each Holder of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction Notes included in the United States;
(iv) deliverShelf Registration Statement and to each underwriter of an underwritten offering of Registrable Notes, if any, without charge, such number of as many copies of the each Prospectus, including each preliminary and final Prospectus Prospectus, and any amendment or supplement thereto thereto, and such other documents as each selling Stockholder such Holder or underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Shares Notes; and (iii) consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Stockholder covered by such Holders of Registrable Notes included in the Shelf Registration Statement in conformity connection with the requirements offering and sale of the Securities ActRegistrable Notes covered by the Prospectus or any amendment or supplement thereto;
(vd) use reasonable best efforts to in the case of a Shelf Registration, register or qualify such the Registrable Shares Notes or Exchange Notes under such other all applicable state securities or "blue sky sky" laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as by the time the applicable Registration Statement is declared effective by the Commission as any Holder of Registrable Notes or Exchange Notes covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Notes shall reasonably request in writing in advance of such date of effectiveness, and do any and all other acts and things which may be required reasonably necessary or advisable to be kept effective under this Agreement (provided enable such Holder and, if applicable, underwriter to consummate the disposition in each such jurisdiction of such Registrable Notes or Exchange Notes owned by such Holder; provided, however, that the Company will shall not be required to (Ai) qualify generally to do business 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 subparagraph (vSection 3(d), (Bii) file any general consent to service of process in any jurisdiction where it would not otherwise be subject to such service of process or (iii) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)if it is not then so subject;
(vi1) in the case of a Shelf Registration or (2) if Participating Broker-Dealers from whom the Company has received prior written notice that they will be utilizing the Prospectus contained in the Exchange Offer Registration Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Notes and are required to deliver Prospectuses, promptly notify each selling Stockholder Holder of Registrable Notes, or such Participating Broker-Dealers, as the case may be, their counsel and each distributor of the managing underwriters, if any, and promptly confirm such Registrable Shares identified by such Stockholder, at any time notice in writing (i) when a Registration Statement has become effective and when any post-effective amendments thereto become effective, (ii) of any request by the Commission or any state securities authority for amendments and supplements to a Registration Statement or Prospectus relating thereto would be required under or for additional information after the Securities Act Registration Statement has become effective, (iii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the qualification of the Registrable Notes or the Exchange Notes to be delivered offered or sold by such distributorany Participating Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or the initiation of any proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the effective date of a Registration Statement and the closing of any sale of Registrable Notes covered thereby, the representations and warranties of the occurrence Company contained in any purchase agreement, securities sales agreement or other similar agreement cease to be true and correct in all material respects, (v) of the happening of any event as a result or the failure of any event to occur or the discovery of any facts, during the Effectiveness Period or the Applicable Period, which the Prospectus included makes any statement made in such Registration Statement contains an or the related Prospectus untrue statement of a in any material fact respect or omits which causes such Registration Statement or Prospectus to omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, andand (vi) of the reasonable determination of the Company that a post-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes included within the coverage of such Shelf Registration Statement, without charge, at least one conformed copy of each Registration Statement relating to such Shelf Registration and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends and in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders or the underwriters may reasonably request at least two Business Days prior to the closing of any sale of Registrable Notes pursuant to such StockholderShelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration, promptly after the Company shall use reasonable best efforts to prepareoccurrence of any event specified in Section 3(e)(ii), as soon as practical3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesNotes or Exchange Notes, as the case may be, such Prospectus shall will not contain an include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (which notice shall misleading; and to notify each Holder to suspend use of the selling Stockholders only of Prospectus as promptly as practicable after the occurrence of such an event event, and shall provide no additional information regarding each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such event to the extent such information would constitute material non-public information)misstatement or omission;
(viij) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Shelf Registration, a Piggyback reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or an S-3 a Prospectus after the initial filing of a Registration Statement, provide a reasonable number of copies of such document to the Holders; and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Notes or the Initial Purchasers on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes or Registrable Notes, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with certificates for the Exchange Notes or the Registrable Notes, as the case may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the TIA, in connection with the registration of the Exchange Notes or Registrable Notes, as the case may be, and effect such changes to such documents as may be required for them to be so qualified in accordance with the terms of the TIA and execute, and cause the Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the Commission to enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into an underwriting agreement containing such provisions agreements (including provisions for indemnification, lockups, opinions of counsel and comfort letters), underwriting agreements) as are customary in underwritten offerings and take all such other customary and reasonable appropriate actions in connection therewith as are reasonably requested by the managing underwriters Holders of such offering may request at least 25% in aggregate principal amount of the Registrable Notes in order to expedite or facilitate the registration or the disposition or the Registrable Notes;
(n) in the case of such Registrable Sharesa Shelf Registration, includingwhether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, causing its officers to use if requested by (x) the Initial Purchasers, in the case where the Initial Purchasers hold Notes acquired by them as part of their reasonable best efforts to support the marketing initial placement or (y) Holders of at least 25% in aggregate principal amount of the Registrable Shares Notes covered by the Registration Statement thereby: (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders Holders of such Registrable Shares Notes and the underwriters, underwriters (if any), with respect to the business of the Company and its material Subsidiaries, the subsidiaries of the Company as then conducted and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, and confirm the same if and when requested;
; (viiiii) in the case obtain opinions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and counsel to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel may be in the form of a reliance letter) in form and opinions (in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriter(s), underwriters (if any, ) and counsels to the selling holders Holders of a majority in aggregate principal amount of the Registrable Shares) Notes being sold, addressed to such underwriters and each selling holder of Registrable Shares in connection therewith, Holder and the underwriters (if any) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, underwriters (it being agreed that the matters to be covered by such records and other information provided under clauses (A) and (B) above shall opinion may be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
qualifications and exceptions); (ixiii) use reasonable best efforts obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to cause all such Registrable Shares to be listed on each primary securities exchange the managing underwriters (if any) on which securities from the independent certified public accountants of the same class issued Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements and financial data are, or are then listedrequired to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by such underwriters in accordance with Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 4 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriters) customary for such agreements with respect to all parties to be indemnified pursuant to said Section (including, without limitation, such underwriters and selling Holders); and in the case of an underwritten registration, the above requirements shall be satisfied at each closing under the related underwriting agreement or as and to the extent required thereunder;
(xo) provide if (l) a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Shelf Registration is filed pursuant to Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement and, a reasonable time before any proposed sale of Registrable Shares filed pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares Section 2(a) is required to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement delivered under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make reasonably available for inspection by any selling Stockholder and Holder of Registrable Notes or Participating Broker-Dealer, as applicable, who certifies to the managing underwriters Company that it has a current intention to sell such Registrable Notes or Exchange Notes, any underwriter participating in any such disposition of any Underwritten OfferingRegistrable Notes, if any:
, and any attorney, accountant or other agent retained by any such selling Holder, Participating Broker-Dealer, as the case may be, or underwriter (1) when the Registration Statement, any pre-effective amendmentcollectively, the Prospectus or any Prospectus supplement or any post-effective amendment to "Inspectors"), at the Registration Statement has been filed andoffices where normally kept, with respect to during the Registration Statement or any post-effective amendmentCompany's normal business hours, when the same has become effective;
(2) of any request by the SEC or any all financial and other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations records, pertinent corporate documents and warranties properties of the Company contained in any agreement and its subsidiaries (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtcollectively, the provisions of clauses (vii), (viii"Records") and (xi) of this Section 5.07(a) as shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares be reasonably necessary to be sold in the offering would reasonably be expected enable them to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which exercise any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectusapplicable due diligence responsibilities, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood cause the officers, directors and agreed that any failure employees of the Company and its subsidiaries to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided supply all relevant information in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder case reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fiserv Inc), Registration Rights Agreement (Fiserv Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the registration ----------------------- obligations of the Company of joining in a request that any Registrable Shares be registered pursuant to this Article Vand in accordance with Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the Company shall use commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, shall as soon expeditiously as practical as provided herein:possible (but subject to Sections 2 and 3 hereof):
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective At least ten (unless it is automatically effective upon filing), provided, however, that 10) business days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto andthereto, furnish to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference Holders who are participating in a such Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such Holders and such underwriters (and their respective counsel), and, in the case of a Demand Registration, the Company will not file any Registration Statement or amendment thereto or any prospectus or any supplement thereof to which the Registering Holders or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC a Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, subject to the Company's right to terminate or abandon a registration pursuant to Section 3(c) hereof, use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective as provided herein;
(c) prepare and file with the SEC such amendments (including post- effective amendments) to such Registration Statement, and such other documents reasonably requested supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such counselRegistration Statement, including any comment letter from make generally available earnings statements satisfying the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation provisions of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning Section 11(a) of the Securities Act, including reasonable access to Act (provided that the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; provided, however, that before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents thatother than reports required to be filed by it under the Exchange Act), upon filing, would be incorporated or deemed incorporated by reference therein) with respect the Company shall furnish to a Demand Registration to which the holders Holders of a majority of the Registrable Shares covered by such Registration Statement (or and their counsel) or the managing underwriter(s)counsel for review and comment, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion copies of the Company’s counsel, such filing is necessary all documents required to comply with applicable lawbe filed;
(iid) use reasonable best efforts to prepare and file with notify the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements Holders of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the any Registrable Shares covered by such Registration Statement during promptly and (if requested) confirm such period notice in accordance writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the intended methods same has become effective, (ii) of disposition set forth any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that requires the making of any changes in such Registration Statement;, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading:
(iiie) use commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any such Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(ivf) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary and prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto thereto, as each selling Stockholder such Holder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder such Holder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(vg) prior to any public offering of Registrable Shares covered by such Registration Statement, use commercially reasonable best efforts to register or qualify such Registrable Shares for offer and sale under such other the securities or blue sky Blue Sky laws of such U.S. jurisdictions as each selling Stockholder the Holders of such Registrable Shares shall reasonably requests and continue such registration or qualification request in effect writing; provided, however, that the Company shall in such jurisdictions for as long as the applicable Registration Statement may no event be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it would is not otherwise be required at the time so qualified or to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction execute or (C) file a general consent to general service of process in any such jurisdiction)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;
(vih) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of upon the occurrence of any event as contemplated by paragraph 5(d)(v) above, prepare a result of which the Prospectus included in supplement or post-effective amendment to such Registration Statement contains or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), such Prospectus will not contain an untrue statement of a material fact or omits a 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;
(i) use commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be listed on each securities exchange or automated interdealer quotation system, andif any, on which similar securities issued by the Company are then listed or quoted;
(j) use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and any securities exchange or regulatory body;
(k) on or before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with printed certificates for the Registrable Shares covered by such Registration Statement which are in a form eligible for deposit with The Depository Trust Company;
(l) if such offering is an underwritten offering, make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), such financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and affiliates (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibilities; provided, however, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspector in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company, which agreement shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if either (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; provided however, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the request Company's expense, may undertake appropriate action to prevent disclosure of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Records; and
(viim) in the case of if such offering is an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registrationunderwritten offering, enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary appropriate and reasonable actions as requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, includingand in such connection, causing its officers to (i) use their commercially reasonable best efforts to support the marketing obtain opinions of the Registrable Shares covered by the Registration Statement (including making members of senior management of counsel to the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, underwriters and counsels counsel to the selling holders Holders of the Registrable Shares) Shares being sold), addressed to such underwriters and each selling holder Holder of Registrable Shares in connection therewith, covering covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however(ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, that if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Registrable Shares covered by the Registration Statement (unless such records and other information provided under clauses (Aaccountants 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 (Biii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be subject done at each closing under such underwriting or similar agreement, or as and to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by extent required thereunder. In addition, the Company are then listed;
agrees (xi) provide a transfer agent and registrar not to effect any public sale or distribution of its Common Stock, par value $.01 per share, or any securities convertible into or exchangeable or exercisable for all such Registrable Shares not later than securities, during the 10 days prior to the effective date of any underwritten Demand or Piggyback Registration and until the earliest of (A) the abandonment of such Registration Statement andoffering, a reasonable time before or (B) the termination of any proposed sale of Registrable Shares "hold back" period reasonably requested by the underwriters (with exceptions for issuances pursuant to a Registration Statementoutstanding options, provide the transfer agent warrants, and convertible or exchangeable securities, pursuant to employee and dividend reinvestment plans, and such other exceptions as are customary or agreed with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correctunderwriter). For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor Holder of Registrable Shares as to which any registration is being effected covered by a Registration Statement to furnish to the Company such information regarding such Person Holder and the distribution such Holder's intended method of disposition of such securities Registrable Shares as the Company it may from time to time reasonably request in writing in connection with writing. If any such registration.
(c) Each Stockholder agrees by having its Shares treated as information is not furnished within a reasonable period of time after receipt of such request, the Company may exclude such Holder's Registrable Shares hereunder from such Registration Statement. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event pursuant to of the kind described in Section 5.07(a)(vi5(d)(ii), each Stockholder will immediately 5(d)(iii), 5(d)(iv) or 5(d)(v) hereof, that such Holder shall forthwith discontinue (and direct disposition of any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any covered by such Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 or the related Prospectus until receipt of the Exchange Actcopies of the supplemented or amended Prospectus contemplated by Section 5(h) hereof, or until it such Holder is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed ------ resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such Prospectus (such period during which disposition is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), discontinued being an "Interruption Period") and, if so directed requested by ------------------- the Company, each Stockholder will the Holder shall deliver to the Company (at the expense of the Company) all copiescopies then in its possession, other than permanent file copies then in each Stockholder’s such holder's possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length request. Each Holder of time that the effectiveness of Registrable Shares covered by a Registration Statement must be maintained shall automatically be extended by further agrees not to utilize any material other than the amount of time a Stockholder is required to discontinue disposition applicable current preliminary prospectus or Prospectus in connection with the offering of such securitiesRegistrable Shares.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Grupo Televisa S A), Registration Rights Agreement (General Motors Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company is required by the provisions of joining in a request that this Agreement to use commercially reasonable efforts to effect or cause the registration of any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to shall prepare and file with the SEC a Registration Statement the requisite registration statement, which shall comply as to form in all material respects with respect the requirements of the applicable form and shall include all financial statements required by the SEC to such Registrable Shares be filed therewith, and use commercially reasonable efforts to cause such Registration Statement registration statement to become and remain effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or blue sky laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany Issuer Free Writing Prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders Holders participating in the planned offering (selected by the Majority Participating Holders, in the case of a registration pursuant to Section 2.1, and selected by the Registrable Shares covered by such Registration Statementlead managing underwriter, their counsel in the case of a registration pursuant to Section 2.2) and the lead managing underwriter(s)underwriter, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements Issuer Free Writing Prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) registration statement or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iib) use reasonable best efforts to shall prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement effective for the relevant such period required hereunder, but no longer than is necessary as any seller of Registrable Securities pursuant to complete the distribution of the Shares covered by such Registration Statement, registration statement shall reasonably request and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement;
(c) shall furnish, without charge, to each seller of such Registrable Securities and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment thereto, the prospectus included in such registration statement, each preliminary prospectus and each Issuer Free Writing Prospectus utilized in connection therewith, all in conformity with the requirements of the Securities Act, and such other documents as such seller and underwriter reasonably may request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller, and shall consent to the use in accordance with all applicable law of each such registration statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus;
(d) shall use commercially reasonable efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, reasonably shall request, and do any and all other acts and things that may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions, except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 2.4(d), it would not be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) shall promptly notify each Holder selling Registrable Securities covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any Issuer Free Writing Prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by 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 of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which results in the registration statement, the prospectus related thereto, any document incorporated therein by reference, any Issuer Free Writing Prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and
(vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects; and, if the notification relates to an event described in clause (v), the Company, subject to the provisions of Section 2.1(c), promptly shall prepare and file with the SEC, and furnish to each seller and each underwriter, if any, a reasonable number of copies of, a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) shall comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within 90 days after the end of such 12 month period described hereafter), an earnings statement, which need not be audited, covering the period of at least 12 consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) shall use commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be authorized to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time, or will be immediately following the offering, listed on such exchange;
(h) shall provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) shall enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities that are to be distributed by any underwriters shall also be parties to any such underwriting agreement);
(j) shall use commercially reasonable efforts to obtain, for the benefit of the underwriters, if any, of any registered underwritten offering of Registrable Securities, an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesregistration statement;
(ivl) delivershall provide a CUSIP number for all Registrable Securities, without charge, such number of copies not later than the effective date of the preliminary registration statement;
(m) shall make reasonably available its employees and final Prospectus personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters, taking into account the needs of the Company’s businesses and the requirements of the marketing process, in the marketing of Registrable Securities in any supplement thereto underwritten offering;
(n) shall cooperate with the sellers of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and to cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement or, if not an underwritten offering, in accordance with the instructions of the sellers of Registrable Securities;
(o) shall take all such other commercially reasonable actions as each selling Stockholder may reasonably request are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(p) shall not take any action which Regulation M under the Exchange Act prohibits the Company from taking in connection with any “distribution” (as defined in Regulation M) of Registrable Shares Securities;
(q) shall cooperate with each seller of Registrable Securities and each selling Stockholder underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(r) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus utilized in connection with any registration covered by such Registration Statement Section 2.1 or 2.2 complies in conformity all material respects with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification , is filed in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under accordance with the Securities Act to be delivered by such distributorthe extent required thereby, of is retained in accordance with the occurrence of Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, . To the extent the Company is a well-known seasoned issuer as defined in Rule 405 under the Securities Act (a “WKSI”) at the request of time any Demand Registration Request is submitted to the Company, and such StockholderDemand Registration Request requests that the Company file an automatic shelf registration statement as defined in Rule 405 under the Securities Act (an “automatic shelf registration statement”) on Form S-3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable best efforts to preparerefile the shelf registration statement on Form S-3 and, as soon as practicalif such form is not available, a supplement or amendment Form S-1 and keep such registration statement effective during the period during which such registration statement is required to such Prospectus so thatbe kept effective. Notwithstanding anything contained herein to the contrary, as thereafter delivered the Company shall be entitled to any prospective purchasers of exclude from the shelf registration statement such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions Securities as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, securities counsel reasonably determine (in consultation with the Majority Participating Holders and their securities counsel) is reasonably necessary for the Registration Statement, Prospectus and documents, if any, incorporated or deemed offering to be incorporated by reference therein, in each case, in form, substance and scope qualify as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
a secondary (viiirather than a primary) in the case of an Underwritten Offering in which each selling Stockholder participates offering pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and Rule 415 under the Securities Act in response to comments from the staff of the SEC. To the extent not prohibited by any Registrable Securities are so excluded, the Company agrees to use commercially reasonable efforts to register such excluded shares in accordance with Section 2.1 promptly when eligible to do so under applicable lawfederal securities laws, (A) make reasonably availablerules, for inspection by the managing underwriters of such offering regulations and one law firm and accounting firm acting for such managing underwriterspolicies, pertinent corporate documents and financial and other records of as the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information securities counsel reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions determine (in form, scope consultation with the Majority Participating Holders and substance) shall be reasonably satisfactory to the managing underwriter(stheir securities counsel), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require as a condition precedent to the Company’s obligations under this Section 2.4 that each selling Stockholder and each distributor seller of Registrable Shares Securities as to which any registration is being effected to furnish to the Company such information in writing regarding such Person seller and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) may request. Each Stockholder seller of Registrable Securities agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company under Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such seller’s receipt of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 copies of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by prospectus. In the Company, each Stockholder will deliver to event the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of shall give any such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained applicable period set forth in Section 2.4(b) shall automatically be extended by the amount number of time a Stockholder is required to discontinue disposition of days during such securities.
(d) The Company may prepare period from and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under including the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness giving of such Registration Statementnotice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus.
Appears in 2 contracts
Sources: Registration Rights Agreement (Liquid Holdings Group, Inc.), Registration Rights Agreement (Liquid Holdings Group LLC)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company of joining in a request that any Registrable Shares be registered In connection with each Registration Statement prepared pursuant to this Article VIV pursuant to which Registrable Securities will be offered and Sold, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, pursuant theretodistribution of the Registrable Securities as described in such Registration Statement, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use its reasonable best efforts to to, as promptly as reasonably practicable (and within the time requirements set out in this Article IV), prepare and file with the SEC a Registration Statement with respect on an appropriate Registration form of the SEC and thereafter use reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing)under the Securities Act promptly after the filing thereof, provided, however, which Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by such form to be filed therewith; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall furnish to one or otherwise make available to the holders of the Registrable Shares covered more legal counsel selected by such Registration Statement, their counsel and the managing underwriter(s), if any, ▇▇▇▇▇▇ draft copies of all such documents proposed to be filed (including exhibits thereto)at least ten Business Days prior to such filing, which documents will be subject to the reasonable review and comment of such counsel▇▇▇▇▇▇ and its agents and Representatives and the underwriters, if any, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such amendment or supplement to a Takedown Prospectus Supplement or Demand Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) ▇▇▇▇▇▇ or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) as promptly as reasonably practicable thereafter, furnish without charge to ▇▇▇▇▇▇ and the underwriters, if any, at least one conformed copy of the Registration Statement and each post-effective amendment or supplement thereto (including all schedules and exhibits but excluding all documents incorporated or deemed incorporated therein by reference, unless requested in writing by ▇▇▇▇▇▇ or an underwriter, except to the extent such exhibits and schedules are currently available via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”)) and such number of copies of the Registration Statement and each amendment or supplement thereto (excluding exhibits and schedules) and the summary, preliminary, final, amended or supplemented Prospectuses included in such Registration Statement as ▇▇▇▇▇▇ or the underwriters, if any, may reasonably request in order to facilitate the public Sale or other disposition of the Registrable Securities being Sold by ▇▇▇▇▇▇ (the Company hereby consents to the use in accordance with the U.S. securities laws of such Registration Statement (or post-effective amendment thereto) and each such Prospectus (or preliminary Prospectus or supplement thereto) by ▇▇▇▇▇▇ and the underwriters, if any, in connection with the offering and Sale of the Registrable Securities covered by such Registration Statement or Prospectus);
(iii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period Effective Period, prepare and file with the SEC such amendments, post-effective amendments and supplements to the Registration Statement and the Prospectus as may be necessary to maintain the effectiveness of the Registration for the Effective Period and cause the Prospectus (and any amendments or supplements thereto) to be filed with the SEC;
(iv) use its reasonable best efforts to, as promptly as reasonably practicable, Register or qualify the Registrable Securities covered by such Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as are reasonably necessary, keep such Registrations or qualifications in effect for so long as the Registration Statement remains in effect, and do any and all other acts and things which may be reasonably necessary to enable ▇▇▇▇▇▇ or any underwriter to consummate the disposition of the Registrable Securities in such jurisdictions; provided, however, that in no event shall the Company be required hereunderto (A) qualify to do business as a foreign corporation in any jurisdiction where it would not, but no longer for the requirements of this subparagraph (iv), be required to be so qualified, (B) execute or file any general consent to service of process under the laws of any jurisdiction, (C) take any action that would subject it to service of process in suits other than is necessary to complete the distribution those arising out of the Shares offer and Sale of the securities covered by the Registration Statement, or (D) subject itself to taxation in any jurisdiction where it would not otherwise be obligated to do so, but for this subparagraph (iv);
(v) use its reasonable best efforts to, as promptly as reasonably practicable, cause all Registrable Securities covered by such Registration Statement, if any, to be listed (after notice of issuance) on the NYSE or on the principal securities exchange or interdealer quotation system on which the Common Stock is then listed or quoted;
(vi) use its reasonable best efforts to promptly notify ▇▇▇▇▇▇ and to comply with the applicable requirements of managing underwriter or underwriters, if any, after becoming aware thereof, (A) when the Securities Act Registration Statement or any related Prospectus or any amendment or supplement thereto has been filed, and, with respect to the disposition of all the Shares covered by such Registration Statement during or any post-effective amendment, when the same has become effective, (B) of any request by the SEC or any U.S. state securities authority for amendments or supplements to the Registration Statement or the related Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for Sale in any jurisdiction or the initiation of any proceeding for such period purpose or (E) within the Effective Period of the happening of any event or the existence of any fact which makes any statement in accordance with the intended methods Registration Statement or any post-effective amendment thereto, Prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any material respect or which requires the making of disposition set forth any changes in such the Registration StatementStatement or post-effective amendment thereto or any Prospectus or amendment or supplement thereto so that they will not contain any untrue statement of a material fact or 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;
(iiivii) during the Effective Period, use its reasonable best efforts to obtain obtain, as promptly as practicable, the withdrawal of any order enjoining or suspending the use or effectiveness of the Registration Statement or any Registration Statement, post-effective amendment thereto or the lifting of any suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale Sale in any jurisdiction in at the United Statesearliest date reasonably practicable;
(ivviii) deliveruse its reasonable best efforts to deliver promptly to ▇▇▇▇▇▇ and the managing underwriters, without chargeif any, such number of copies of all correspondence between the preliminary SEC and final Prospectus the Company, its legal counsel or auditors and any supplement thereto all memoranda relating to discussions with the SEC or its staff with respect to the Registration Statement (except to the extent such correspondence is currently available via ▇▇▇▇▇);
(ix) use its reasonable best efforts to permit ▇▇▇▇▇▇, the underwriters(s) and its and their respective Representatives to do such reasonable investigation with respect to information contained in or omitted from the Registration Statement as each selling Stockholder may it deems reasonably request in order necessary for the purpose of conducting due diligence with respect to facilitate the disposition of the Company;
(x) use its reasonable best efforts to, as promptly as reasonably practicable, provide and cause to be maintained a transfer agent and registrar for all Registrable Shares of each selling Stockholder Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(xi) use its reasonable best efforts to cooperate with ▇▇▇▇▇▇ and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates or book-entry shares representing the Registrable Securities to be Sold under the Registration Statement in conformity a form eligible for deposit with The Depository Trust Company not bearing any restrictive legends (other than as required by The Depository Trust Company) and not subject to any stop transfer order with any transfer agent, and cause such Registrable Securities to be issued in such denominations and Registered in such names as the managing underwriters, if any, may request in writing or, if not an Underwritten Offering, in accordance with the instructions of ▇▇▇▇▇▇, in each case at least two Business Days prior to any Sale of Registrable Securities;
(xii) in the case of a firm commitment Underwritten Offering, use its reasonable best efforts to, as promptly as reasonably practicable, enter into an underwriting agreement customary in form and substance (taking into account the Company’s prior underwriting agreements) for firm commitment underwritten secondary offerings of the nature contemplated by the applicable Registration Statement;
(xiii) use its reasonable best efforts to, as promptly as reasonably practicable, obtain an opinion from the Company’s outside and internal legal counsel and a “comfort” letter (and bring-down “comfort” letter) from the Company’s independent public accountants (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company, any accounting predecessor or successor to the Company (including, for the avoidance of doubt, the SpinCo Business) or any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement) in customary form and covering such matters as are customarily covered by such opinions, “comfort” letters and bring-down “comfort” letters in connection with an offering of the nature contemplated by the applicable Registration Statement;
(xiv) use its reasonable best efforts to, as promptly as reasonably practicable, provide to legal counsel to ▇▇▇▇▇▇ and to the managing underwriters, if any, and no later than the time of filing of any document which is to be incorporated by reference into the Registration Statement or Prospectus (after the initial filing of such Registration Statement), copies of any such document;
(xv) cause its officers to fully cooperate with the marketing of the Registrable Securities covered by the Registration Statement, including, at the recommendation or request of the underwriters, making themselves available to participate in presentations (including “road-shows”), “one-on-one,” and other customary marketing activities in such locations (domestic and foreign) as recommended by the underwriter(s);
(xvi) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
(xvii) otherwise use its reasonable best efforts to comply with, and cause its officers to comply with, all applicable rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) (including by collecting and delivering any FINRA questionnaires requested by counsel to ▇▇▇▇▇▇), the SEC and NYSE (or any other applicable national securities exchange);
(xviii) use its reasonable best efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Securities Act;Company; and
(vxix) use its reasonable best efforts to register take all other steps, at the written request of ▇▇▇▇▇▇, as may be necessary to effect the Registration, offering and Sale of the Registrable Securities as required hereby.
(b) In the event that the Company would be required, pursuant to Section 4.10(a)(vi)(E), to notify ▇▇▇▇▇▇ or qualify the managing underwriter or underwriters, if any, of the happening of any event specified therein, the Company shall, subject to Section 4.03(c), as promptly as practicable, prepare and furnish to ▇▇▇▇▇▇ and to each such underwriter a reasonable number of copies of a Prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities that have been Registered pursuant to this Agreement, such Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. ▇▇▇▇▇▇ agrees that, upon receipt of any notice from the Company pursuant to Section 4.10(a)(vi)(E), it shall, and shall use its reasonable best efforts to, cause any Sales or placement agent or agents for the Registrable Securities and the underwriters, if any, to forthwith discontinue disposition of the Registrable Securities until such Person shall have received copies of such amended or supplemented Prospectus and, if so directed by the Company, to destroy all copies, other than permanent file copies, then in its possession of the Prospectus (prior to such amendment or supplement) covering such Registrable Shares under Securities as soon as practicable after ▇▇▇▇▇▇’ receipt of such notice.
(c) The Company hereby agrees that if it shall previously have received a request pursuant to Section 4.01 or Section 4.02 for Registration of Registrable Securities in an Underwritten Offering, and if such previous Registration shall not have been withdrawn or abandoned, the Company, if requested by the managing underwriter for such Underwritten Offering, shall not Transfer to a third party or third parties any Common Stock, any other equity security of the Company or any security convertible into or exchangeable for any equity security of the Company until the earlier of (i) 90 days after the effective date of such Registration Statement and (ii) such time as all of the Registrable Securities covered by such Registration Statement have been distributed; provided, however, that notwithstanding the foregoing, the Company may Transfer Common Stock or such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally as part of such Underwritten Offering, subject to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v)Section 4.06, (B) subject itself pursuant to taxation in any such jurisdiction a Registration Statement on Form S-8 or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required Form S-4 under the Securities Act or any successor or similar form, (C) as part of a transaction under Rule 145 of the Securities Act, (D) in one or more private transactions that would not interfere with the method of distribution contemplated by such Registration Statement or (E) if such Transfer was publicly announced or agreed to in writing by the Company prior to the date of the receipt of such request pursuant to Section 4.01, but subject to Section 4.06 if applicable.
(d) ▇▇▇▇▇▇ shall furnish to the Company in writing such information regarding Jacobs and its intended method of distribution of the Registrable Securities as the Company may from time to time reasonably request in writing in order for the Company to comply with its obligations under all applicable securities and other laws and to ensure that the Prospectus relating to such Registrable Securities conforms to the applicable requirements of the Securities Act and the rules and regulations thereunder, including any financial statements or other information of the SpinCo Business relating to any date or any period ending on or prior to the Merger Closing Date to the extent required to be delivered included or incorporated by such distributor, reference in any Prospectus and not already in the possession of the Company. ▇▇▇▇▇▇ shall promptly notify the Company of any inaccuracy or change in information previously furnished by ▇▇▇▇▇▇ to the Company or of the occurrence of any event event, in either case as a result of which any Prospectus relating to the Prospectus included in such Registration Statement Registrable Securities contains or would contain an untrue statement of a material fact or omits a 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, at the request of such Stockholder, and promptly furnish to the Company shall use reasonable best efforts any additional information required to prepare, as soon as practical, a supplement correct and update any previously furnished information or amendment to such Prospectus required so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, that such Prospectus shall not contain an untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed required to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.stated
Appears in 2 contracts
Sources: Registration Rights Agreement (Amentum Holdings, Inc.), Registration Rights Agreement (Amazon Holdco Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the registration ----------------------- obligations of the Company of joining in a request that any Registrable Shares be registered pursuant to this Article Vand in accordance with Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the Company shall use commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall, shall as soon expeditiously as practical as provided herein:possible (but subject to Sections 2 and 3 hereof):
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective At least ten (unless it is automatically effective upon filing), provided, however, that 10) business days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto andthereto, furnish to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference Holders who are participating in a such Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such Holders and such underwriters (and their respective counsel), and, in the case of a Demand Registration, the Company will not file any Registration Statement or amendment thereto or any prospectus or any supplement thereof to which the Registering Holders or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC a Registration Statement for the sale of the Registrable Shares on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate in accordance with such Holders' intended method or methods of distribution thereof, subject to Section 2(b) hereof, and, subject to the Company's right to terminate or abandon a registration pursuant to Section 3(c) hereof, use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective as provided herein;
(c) prepare and file with the SEC such amendments (including post-effective amendments) to such Registration Statement, and such other documents reasonably requested supplements to the related Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in accordance with the intended methods of disposition specified by the Holders of the Registrable Shares covered by such counselRegistration Statement, including any comment letter from make generally available earnings statements satisfying the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation provisions of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning Section 11(a) of the Securities Act, including reasonable access to Act (provided that the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; provided, however, that before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents thatother than reports required to be filed by it under the Exchange Act), upon filing, would be incorporated or deemed incorporated by reference therein) with respect the Company shall furnish to a Demand Registration to which the holders Holders of a majority of the Registrable Shares covered by such Registration Statement (or and their counsel) or the managing underwriter(s)counsel for review and comment, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion copies of the Company’s counsel, such filing is necessary all documents required to comply with applicable lawbe filed;
(iid) use reasonable best efforts to prepare and file with notify the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements Holders of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the any Registrable Shares covered by such Registration Statement during promptly and (if requested) confirm such period notice in accordance writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to such Registration Statement or any post-effective amendment, when the intended methods same has become effective, (ii) of disposition set forth any request by the SEC for amendments or supplements to such Registration Statement or the related Prospectus or for additional information regarding such Holders, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event that requires the making of any changes in such Registration Statement;, Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading:
(iiie) use commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any such Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(ivf) furnish to the Holder of any Registrable Shares covered by such Registration Statement, each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary and prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto thereto, as each selling Stockholder such Holder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder such Holder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(vg) prior to any public offering of Registrable Shares covered by such Registration Statement, use commercially reasonable best efforts to register or qualify such Registrable Shares for offer and sale under such other the securities or blue sky Blue Sky laws of such U.S. jurisdictions as each selling Stockholder the Holders of such Registrable Shares shall reasonably requests and continue such registration or qualification request in effect writing; provided, however, that the Company shall in such jurisdictions for as long as the applicable Registration Statement may no event be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it would is not otherwise be required at the time so qualified or to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction execute or (C) file a general consent to general service of process in any such jurisdiction)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;
(vih) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of upon the occurrence of any event as contemplated by paragraph 5(d)(v) above, prepare a result of which the Prospectus included in supplement or post-effective amendment to such Registration Statement contains or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), such Prospectus will not contain an untrue statement of a material fact or omits a 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;
(i) use commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be listed on each securities exchange or automated interdealer quotation system, andif any, on which similar securities issued by the Company are then listed or quoted;
(j) use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and any securities exchange or regulatory body;
(k) on or before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with printed certificates for the Registrable Shares covered by such Registration Statement which are in a form eligible for deposit with The Depository Trust Company;
(l) if such offering is an underwritten offering, make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), such financial and other records and other information, pertinent corporate documents and properties of any of the Company and its subsidiaries and affiliates (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibilities; provided, however, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspector in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the Company, which agreement shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if either (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; provided however, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the request Company's expense, may undertake appropriate action to prevent disclosure of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Records; and
(viim) in the case of if such offering is an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registrationunderwritten offering, enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary appropriate and reasonable actions as requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, includingand in such connection, causing its officers to (i) use their commercially reasonable best efforts to support the marketing obtain opinions of the Registrable Shares covered by the Registration Statement (including making members of senior management of counsel to the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, underwriters and counsels counsel to the selling holders Holders of the Registrable Shares) Shares being sold), addressed to such underwriters and each selling holder Holder of Registrable Shares in connection therewith, covering covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however(ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, that if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Registrable Shares covered by the Registration Statement (unless such records and other information provided under clauses (Aaccountants 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 (Biii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be subject done at each closing under such underwriting or similar agreement, or as and to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by extent required thereunder. In addition, the Company are then listed;
agrees (xi) provide a transfer agent and registrar not to effect any public sale or distribution of its Common Stock, par value $.01 per share, or any securities convertible into or exchangeable or exercisable for all such Registrable Shares not later than securities, during the 10 days prior to the effective date of any underwritten Demand or Piggyback Registration and until the earliest of (A) the abandonment of such Registration Statement andoffering, a reasonable time before or (B) the termination of any proposed sale of Registrable Shares "hold back" period reasonably requested by the underwriters (with exceptions for issuances pursuant to a Registration Statementoutstanding options, provide the transfer agent warrants, and convertible or exchangeable securities, pursuant to employee and dividend reinvestment plans, and such other exceptions as are customary or agreed with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correctunderwriter). For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor Holder of Registrable Shares as to which any registration is being effected covered by a Registration Statement to furnish to the Company such information regarding such Person Holder and the distribution such Holder's intended method of disposition of such securities Registrable Shares as the Company it may from time to time reasonably request in writing in connection with writing. If any such registration.
(c) Each Stockholder agrees by having its Shares treated as information is not furnished within a reasonable period of time after receipt of such request, the Company may exclude such Holder's Registrable Shares hereunder from such Registration Statement. Each Holder of Registrable Shares covered by a Registration Statement agrees that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event pursuant to of the kind described in Section 5.07(a)(vi5(d)(ii), each Stockholder will immediately 5(d)(iii), 5(d)(iv) or 5(d)(v) hereof, that such Holder shall forthwith discontinue (and direct disposition of any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any covered by such Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 or the related Prospectus until receipt of the Exchange Actcopies of the supplemented or amended Prospectus contemplated by Section 5(h) hereof, or until it such Holder is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed ------ resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such Prospectus (such period during which disposition is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), discontinued being an "Interruption Period") and, if so directed requested by ------------------- the Company, each Stockholder will the Holder shall deliver to the Company (at the expense of the Company) all copiescopies then in its possession, other than permanent file copies then in each Stockholder’s such holder's possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length request. Each Holder of time that the effectiveness of Registrable Shares covered by a Registration Statement must be maintained shall automatically be extended by further agrees not to utilize any material other than the amount of time a Stockholder is required to discontinue disposition applicable current preliminary prospectus or Prospectus in connection with the offering of such securitiesRegistrable Shares.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Panamsat Corp), Registration Rights Agreement (Article Vii Trust Created Under Rene Anselmo Revocable Trust)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Agreement (including any sale referred to this Article Vin any Take-Down Notice), the Company shall use reasonable best efforts to effectas promptly as reasonably practicable, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, Agreement:
(i) use reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Article 5; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice, the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriters, and such other documents reasonably requested by any such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriters, if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered underwritten offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriters and their counsel) the Company’s books and records, officers, accountants and other advisors. The Company shall ; provided that the same occurs during normal business hours after reasonable notice and does not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) materially interfere with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion business of the Company’s counsel, ; provided further that such filing persons shall first agree in writing with the Company that any information that is necessary reasonably designated by the Company as confidential at the time of delivery shall be kept confidential by such persons subject to comply with applicable lawcustomary exceptions;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementthis Article 5;
(iii) use reasonable best efforts if requested by the lead managing underwriters, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriters, if any, and such holders may reasonably request in order to obtain permit the withdrawal intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any order suspending the effectiveness of any Registration Statementactions under this Section 5.03(a)(iii) that are not, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesopinion of counsel for the Company, in compliance with applicable law;
(iv) deliverfurnish to the Selling Holders and each underwriter, without chargeif any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders and underwriters, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holders;
(v) use reasonable best efforts to register or qualify cause such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required Securities to be kept effective under this Agreement (provided that listed on each securities exchange on which similar securities issued by the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)are then listed;
(vi) notify each selling Stockholder use reasonable efforts to provide and each distributor cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(vii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to such Stockholder, Registration Statement or the prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions clause (including provisions for indemnification, lockups, opinions of counsel and comfort lettersF), and take all that such other customary and notice need not include the nature or details concerning such events;
(viii) use reasonable actions as efforts to obtain the managing underwriters withdrawal of any order suspending the effectiveness of such offering may request Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in order any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be required to facilitate (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(ix) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable SharesSecurities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, includingInc.; and
(x) prior to any public offering of Registrable Securities, causing its officers to use their reasonable best efforts to support register or qualify or cooperate with the marketing of Selling Holders in connection with the Registrable Shares covered by the Registration Statement registration or qualification (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making or exemption from such representations and warranties to the holders registration or qualification) of such Registrable Shares Securities for offer and sale under the underwritersapplicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, if any, with respect to the business of that the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed will not be required to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for inspection by the managing underwriters requirements of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliatesthis clause (xi) be obligated to be so qualified, (B) cause the Company’s officers and employees subject itself to supply information reasonably requested by taxation in any such managing underwriters jurisdiction or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for file a general consent to service of process in any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be soldjurisdiction;
(xi) make generally available use reasonable efforts to Stockholders cooperate with the holders to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be delivered to a consolidated earnings statement (transferee pursuant to the Registration Statements, which need not certificates or book-entry securities shall be audited) for a period free, to the extent permitted by the Indenture and applicable law, of 12 months beginning all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effective date effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as soon as reasonably practicable after required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the end transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such period, which earnings statement shall satisfy shares of Registrable Securities under the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunderRegistration Statement; and
(xii) promptly notify agrees with each selling Stockholder and the managing underwriters holder of Registrable Securities that, in connection with any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus Offering or any Prospectus supplement or any post-effective amendment other resale pursuant to the Registration Statement has been filed andin accordance with the terms hereof, with respect it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (viiCompany), (viii) including using reasonable efforts to procure customary legal opinions and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountauditor “comfort” letters.
(b) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 5.03(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(c) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 5.03(a)(vii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Investment Agreement (Nikola Corp), Investment Agreement (ChargePoint Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon promptly as practical as provided hereinpracticable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsSEC. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any Proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening in the United States;
(iv) deliverwriting of any Proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in which compliance with applicable law;
(f) furnish or make available to each selling Stockholder participates pursuant holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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 the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement and, if required by the Corporation’s transfer agent, cause an opinion of counsel to be delivered to such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the holder or an S-3 Shelf Registrationthe underwriter or managing underwriter, if any, of such Registrable Securities under the Registration Statement;
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering Registrable Securities and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records the underwriters opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any), and counsels addressed to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 6(n)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(o) make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and one firm of attorneys and one firm of accountants retained by such selling holders or underwriter, as applicable, at the offices where normally kept, during reasonable business hours, such financial and other records, pertinent corporate documents and properties of the Corporation and its subsidiaries reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that such records and other any information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current not generally publicly available at the time of receipt delivery of such noticeinformation shall be kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, provided(ii) disclosure of such information, howeverin the opinion of counsel to such Person, that the time periods under this Article V with respect is required by law or applicable legal process, or (iii) such information becomes generally available to the length of time that the effectiveness public other than as a result of a Registration Statement must be maintained non-permitted disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in give the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days Corporation written notice of the proposed disclosure prior to the anticipated filing date of the Registration Statementsuch disclosure and, information regarding such Stockholder reasonably if requested by the Company and required to achieve effectiveness of such Registration Statement.Corporation, assist the Corporation in seeking t
Appears in 2 contracts
Sources: Registration Rights Agreement (Sportradar Group AG), Registration Rights Agreement (Sportradar Group AG)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the obligations of the Company with respect to the Company of joining in a request that any Registrable Shares be registered Registration Statements pursuant to this Article VSections 2(a) and 2(b) hereof, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided hereinto:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant time period specified in Section 2 hereof on the appropriate form under the Securities Act, which form shall (i) be selected by the Company, (ii) in the case of a Shelf Registration, be available for the sale of the Registrable Notes by the selling Holders thereof and, in the case of an Exchange Offer, be available for the exchange of Registrable Notes, and (iii) comply as to form in all material respects with respect the requirements of the applicable form and include all financial statements required by the SEC to such Registrable Shares and be filed therewith; the Company shall use its reasonable best efforts to cause such Registration Statement to become effective and remain effective (unless it and, in the case of a Shelf Registration Statement, the Prospectus usable for resales) in accordance with Section 2 hereof; PROVIDED, HOWEVER, that if (1) such filing is automatically effective upon filingpursuant to Section 2(b), providedor (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes, however, that before filing a any Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall furnish or otherwise make available to and afford the holders Holders of the Registrable Shares Notes and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, 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 (including exhibits thereto), which documents will be subject to filed; and the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with in respect to a Demand Registration to of which the holders Holders must be afforded an opportunity to review prior to the filing of a majority of such document if the Registrable Shares covered by Majority Holders or such Registration Statement (or Participating Broker-Dealer, as the case may be, their counsel) counsel or the managing underwriter(s)underwriters, if any, shall reasonably object, object in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawmanner;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunderEffectiveness Period or the Applicable Period, but no longer than is necessary to complete as the distribution of the Shares covered by such Registration Statementcase may be, and cause each Prospectus to be supplemented, if so determined by the Company or requested by the SEC, by any required prospectus supplement and as so supplemented to be filed pursuant to Rule 424 (or any similar provision then in force) under the Securities Act, and comply with the applicable requirements provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder applicable to it with respect to the disposition of all the Shares securities covered by such each Registration Statement during such period the Effectiveness Period or the Applicable Period, as the case may be, in accordance with the intended method or methods of disposition set forth distribution by the selling Holders thereof described in such Registration Statementthis Agreement (including sales by any Participating Broker-Dealer);
(iiic) use reasonable best efforts to obtain in the withdrawal case of any order suspending a Shelf Registration, (i) notify each Holder of Registrable Notes included in the effectiveness of any Shelf Registration Statement, or at least three Business Days prior to filing, that a Shelf Registration Statement with respect to the lifting Registrable Notes is being filed and advising such Holder that the distribution of any suspension Registrable Notes will be made in accordance with the method selected by the Majority Holders, (ii) furnish to each Holder of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction Notes included in the United States;
(iv) deliverShelf Registration Statement and to each underwriter of an underwritten offering of Registrable Notes, if any, without charge, such number of as many copies of the each Prospectus, including each preliminary and final Prospectus prospectus, and any amendment or supplement thereto thereto, and such other documents as each selling Stockholder such Holder or underwriter may reasonably request request, in order to facilitate the public sale or other disposition of the Registrable Shares Notes and (iii) consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Stockholder covered by such Holders of Registrable Notes included in the Shelf Registration Statement in conformity connection with the requirements offering and sale of the Securities ActRegistrable Notes covered by the Prospectus or any amendment or supplement thereto;
(vd) use reasonable best efforts to in the case of a Shelf Registration, register or qualify such the Registrable Shares Notes under such other all applicable state securities or "blue sky sky" laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as by the time the applicable Registration Statement is declared effective by the SEC as any Holder of Registrable Notes covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Notes shall reasonably request in writing in advance of such date of effectiveness, and do any and all other acts and things which may be required reasonably necessary or advisable to be kept effective under this Agreement (provided enable such Holder and underwriter to consummate the disposition in each such jurisdiction of such Registrable Notes owned by such Holder; PROVIDED, HOWEVER, that the Company will shall not be required to (Ai) qualify generally to do business 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 subparagraph (vSection 3(d), (Bii) file any general consent to service of process in any jurisdiction where it would not otherwise be subject to such service of process or (iii) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)if it is not then so subject;
(vi1) in the case of a Shelf Registration or (2) if Participating Broker-Dealers from whom the Company has received prior written notice that they will be utilizing the Prospectus contained in the Exchange Offer Registration Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Notes and are required to deliver Prospectuses, promptly notify each selling Stockholder Holder of Registrable Notes, or such Participating Broker-Dealers, as the case may be, their counsel and each distributor of the managing underwriters, if any, and promptly confirm such Registrable Shares identified by such Stockholder, at any time notice in writing (i) when a Registration Statement has become effective and when any post-effective amendments thereto become effective, (ii) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement or Prospectus relating thereto would be required under or for additional information after the Securities Act Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the qualification of the Registrable Notes or the Exchange Notes to be delivered offered or sold by such distributorany Participating Broker-Dealer in any jurisdiction described in Section 3(d) hereof or the initiation of any proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the effective date of a Registration Statement and the closing of any sale of Registrable Notes covered thereby, the representations and warranties of the occurrence Company contained in any purchase agreement, securities sales agreement or other similar agreement cease to be true and correct in all material respects, (v) of the happening of any event as a result or the failure of any event to occur or the discovery of any facts, during the Effectiveness Period, which the Prospectus included makes any statement made in such Registration Statement contains an or the related Prospectus untrue statement of a in any material fact respect or omits which causes such Registration Statement or Prospectus to omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, andas well as any other corporate developments, public filings with the SEC or similar events causing such Registration Statement not to be effective or the Prospectus not useable for resales and (vi) of the reasonable determination of the Company that a post-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes included within the coverage of such Shelf Registration Statement, without charge, at least one conformed copy of each Registration Statement relating to such Shelf Registration and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends (other than with respect to restrictions requiring minimum transfers in blocks having an aggregate principal amount of $100,000) and in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders or the underwriters may reasonably request at least two Business Days prior to the closing of any sale of Registrable Notes pursuant to such StockholderShelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration, promptly after the Company shall use reasonable best efforts occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to preparea 60-day grace period within any twelve-month period) or 3(e)(vi) hereof, as soon as practical, prepare a supplement or post-effective amendment to such Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to any prospective the purchasers of such the Registrable SharesNotes, such Prospectus shall will not contain an include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (which notice misleading; and the Company shall notify each Holder to suspend use of the selling Stockholders only of Prospectus as promptly as practicable after the occurrence of such an event event, and shall provide no additional information regarding each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such event to the extent such information would constitute material non-public information)misstatement or omission;
(viij) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Shelf Registration, a Piggyback reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or an S-3 a Prospectus after the initial filing of a Registration State- ment, provide a reasonable number of copies of such document to the Holders and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Notes or the Initial Purchasers on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for each series of Notes, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with certificates for the Exchange Notes or the Registrable Notes, as the case may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the registration of the Exchange Notes or Registrable Notes, as the case may be, and effect such changes to such documents as may be required for them to be so qualified in accordance with the terms of the TIA and execute, and cause the Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into an underwriting agreement containing such provisions agreements (including provisions for indemnification, lockups, opinions of counsel and comfort letters), underwriting agreements) as are customary in underwritten offerings and take all such other customary and reasonable appropriate actions in connection therewith as are reasonably requested by the managing underwriters Holders of such offering may request at least 25% in aggregate principal amount of the Registrable Notes in order to expedite or facilitate the registration or the disposition of the Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, if requested by (x) an Initial Purchaser, in the case where such Registrable Shares, including, causing Initial Purchaser holds Notes acquired by it as part of its officers to use their reasonable best efforts to support the marketing initial placement and (y) Holders of at least 25% in aggregate principal amount of the Registrable Shares Notes covered by the Registration Statement thereby: (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making i) make such representations and warranties to the holders Holders of such Registrable Shares Notes and the underwriters, underwriters (if any), with respect to the business of the Company and its material Subsidiaries, the subsidiaries of the Company as then conducted and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, and confirm the same if and when requested;
; (viiiii) in the case obtain opinions of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and counsel to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel may be in the form of a reliance letter) in form and opinions (in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriter(s), underwriters (if any, ) and counsels to the selling holders Holders of a majority in amount of the Registrable Shares) Notes being sold, addressed to such underwriters and each selling holder of Registrable Shares in connection therewith, Holder and the underwriters (if any) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, underwriters (it being agreed that the matters to be covered by such records and other information provided under clauses (A) and (B) above shall opinion may be subject to customary qualifications and exceptions); (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such confidential treatment letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by such underwriters in accordance with Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 4 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriters) customary for underwriters’ due diligence reviewssuch agreements with respect to all parties to be indemnified pursuant to said Section (including, without limitation, such underwriters and selling Holders); and in the case of an underwritten registration, the above requirements shall be satisfied at each closing under the related underwriting agreement or as and to the extent required thereunder;
(ixo) use reasonable best efforts if (1) a Shelf Registration is filed pursuant to cause all such Registrable Shares Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement delivered under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make reasonably available for inspection by any selling Stockholder and Holder or Registrable Notes or Participating Broker-Dealer, as applicable, who certifies to the managing underwriters Company that it has a current intention to sell Registrable Notes pursuant to the Shelf Registration, any underwriter participating in any such disposition of any Underwritten OfferingRegistrable Notes, if any:
, and any attorney, accountant or other agent retained by any such selling Holder, Participating Broker-Dealer, as the case may be, or underwriter (1) when the Registration Statement, any pre-effective amendmentcollectively, the Prospectus or any Prospectus supplement or any post-effective amendment to "INSPECTORS"), at the Registration Statement has been filed andoffices where normally kept, with respect to during the Registration Statement or any post-effective amendmentCompany's normal business hours, when the same has become effective;
(2) of any request by the SEC or any all financial and other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations records, pertinent organizational and warranties operational documents and properties of the Company contained in any agreement and its subsidiaries (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtcollectively, the provisions of clauses (vii), (viii"RECORDS") and (xi) of this Section 5.07(a) as shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares be reasonably necessary to be sold in the offering would reasonably be expected enable them to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which exercise any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, applicable due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.diligen
Appears in 2 contracts
Sources: Registration Rights Agreement (Equity Office Properties Trust), Registration Rights Agreement (Equity Office Properties Trust)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSections 3, 4 or 5, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company Corporation shall furnish or otherwise make available to the holders of the Principal Stockholder that hold Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities held by the Principal Stockholder covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable lawLaw;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar or successor rule or regulation then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Registration Statement, Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 7(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 7(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in compliance with applicable Law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 7, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) or issuance of Registrable Securities in book-entry form (not being subject to any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 7(c)(vi), promptly prepare and file with the SEC a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration or an S-3 Shelf RegistrationStatement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement and, if applicable, provide for a custodian for such Registrable Securities and enter into any agreements with respect thereto;
(n) use its reasonable best efforts to cause all Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement (or, if such registration is an Initial Public Offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within one (1) Business Day following the effectiveness of such Registration Statement);
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in Underwritten Offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities held by the Principal Stockholders that are being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offeringsUnderwritten Offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, 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; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates or bring-downs thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any Subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed Underwritten Offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 9 with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by each Principal Stockholder and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (7(o)(i) and direct to evidence compliance with any customary conditions contained in the underwriting agreement or other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing agreement entered into by the Company that the use of the Prospectus may Corporation. The above shall be resumed and is furnished with a supplemented done at each closing under such underwriting or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.similar
Appears in 2 contracts
Sources: Registration Rights Agreement (BrightSpring Health Services, Inc.), Registration Rights Agreement (BrightSpring Health Services, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration or Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement (or, if such Registration is an S-3 Shelf Registrationinitial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten (10) business days following the effectiveness of such Registration Statement);
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi)6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation. The above shall be done at each closing under such underwriting or similar agreement, each Stockholder will immediately discontinue or as and to the extent required thereunder;
(and direct any other Persons making offers and sales p) make available for inspection by a representative of the selling holders of Registrable Shares to immediately discontinue) offers and sales Securities, any underwriter participating in any such disposition of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), andSecurities, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectusany, and references herein to any “supplement” to a Prospectus shall include any attorneys or accountants retained by such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.selling
Appears in 2 contracts
Sources: Registration Rights Agreement (PRA Health Sciences, Inc.), Registration Rights Agreement (PRA Health Sciences, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible to the extent applicable:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration Prospectus supplement or an S-3 Shelf Registration, enter into an underwriting agreement containing post-effective amendment such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable SharesSecurities, includingits counsel and each managing underwriter, causing its officers to use their reasonable best efforts to support the marketing if any, without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by the Registration Statement (including making members of senior management of reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Company may furnish or make available at reasonable times and places any such documents in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available use its reasonable best efforts to, cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, all financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing representative, underwriter, counsel or accountant in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such noticeStatement, provided, however, that any information that is not generally publicly available at the time periods under of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Article V Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the length Offering Persons from a source other than the Company when such source, to the knowledge of time that the effectiveness Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use or, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement must be maintained shall automatically be extended by or Prospectus under this Agreement); and
(p) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare Registrable Securities and deliver an issuer free-writing prospectus (as such term is defined their respective counsel in Rule 405 under the Securities Act) in lieu of connection with any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or filings required to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite made with the Company’s good faith and FINRA, including the use reasonable best efforts to resolve those comments obtain FINRA’s pre-clearance or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date pre-approval of the Registration Statement, information regarding such Stockholder reasonably requested by the Company Statement and required to achieve effectiveness of such Registration Statement.applicable Prospectus upon
Appears in 2 contracts
Sources: Registration Rights Agreement (Genesee & Wyoming Inc), Investment Agreement (Genesee & Wyoming Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the holders thereof in accordance with respect the intended method or methods of distribution thereof (including, without limitation, a Partner Distribution), and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisorsfiled. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus used in connection therewith to be supplemented by any Prospectus supplement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement during or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such period purpose, and (vi) of the happening of any event that makes any statement made in accordance with such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the intended methods making of disposition set forth any changes in such Registration Statement;, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in the United States;jurisdiction.
(ive) deliverIf requested by the managing underwriters, without chargeif any, such number or the holders of copies a majority of the preliminary holders of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and final Prospectus and any supplement thereto as each selling Stockholder such holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholder holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or underwriter reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder and each distributor holder of such Registrable Shares identified Securities that the Registrable Securities represented by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be certificates so delivered by such distributorholder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event as contemplated by Section 6(c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be quoted on the NASDAQ National Market or listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on the NASDAQ National Market or listed on such exchange, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);case may be.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such records and other information provided under clauses (A) and (B) above shall be subject kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such confidential treatment as Person, is customary for underwriters’ due diligence reviews;
required by law, or (ixiii) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make information becomes generally available to Stockholders the public other than as a consolidated earnings statement result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (which need not i) or (ii) above, such Person shall be audited) for a period of 12 months beginning after required to give the effective date Company written notice of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect proposed disclosure prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), disclosure and, if so directed requested by the Company, each Stockholder will deliver to assist the Company all copiesin seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, other than permanent file copies then no such information shall be used by such Person as the basis for any market transactions in each Stockholder’s possession, securities of the Prospectus covering such Registrable Shares current at the time Company or its subsidiaries in violation of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitieslaw.
(dq) The Company may prepare Comply with all applicable rules and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.regulati
Appears in 2 contracts
Sources: Registration Rights Agreement (Targa Resources Corp.), Registration Rights Agreement (Targa Resources Investments Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, make all required filings with FINRA and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to (including any free writing prospectuses under Rule 433 under the extent reasonably practicable, Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Demand Party, the Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (Statement, or their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;law;
(iib) use reasonable best efforts subject to Section 3(e), prepare and file with the SEC such amendments, post-effective amendments and supplements to such each Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered by such period Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;Statement;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(h) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or the managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the 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 the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement (and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an Underwritten Offering in underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or other national securities exchange on which each selling Stockholder participates pursuant the Common Stock is then listed, prior to a Demand Registrationthe effectiveness of such Registration Statement (or, a Piggyback Registration if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or an S-3 Shelf RegistrationNASDAQ, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by selling Holders and the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any), and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the addressed to each selling Holder of Registrable Shares to Securities (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (1iv) when the Registration Statement, any pre-effective amendmentif an underwriting agreement is entered into, the Prospectus or any Prospectus supplement or any post-effective amendment same shall contain indemnification provisions and procedures substantially to the Registration Statement has been filed and, effect set forth in Section 8 hereof with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease all parties to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.indemnified pursua
Appears in 2 contracts
Sources: Registration Rights Agreement (US Foods Holding Corp.), Investment Agreement (US Foods Holding Corp.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification If and whenever the Corporation is required to effect the Company registration of joining in a request that any Registrable Shares be registered pursuant to this Article V, Securities under the Company shall use reasonable best efforts to effect, as soon as practical Securities Act as provided in this Article VSection 3 and Section 4 hereof, the Corporation shall effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company Corporation shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company Corporation shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the CompanyCorporation’s books and records, officers, accountants and other advisors. The Company Corporation shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counselCorporation, such filing is necessary to comply with applicable lawLaw;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Corporation has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or to prevent or obtain the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided, however, that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the case opinion of an Underwritten Offering counsel for the Corporation, in compliance with applicable Law;
(f) furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;
(g) deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject to such service but for this Agreement;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten business days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which each selling Stockholder participates pursuant case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended methods of disposition set forth in such Registration Statement;
(k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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;
(l) prior to the effective date of the Registration or Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by the Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement (or, if such Registration is an S-3 Shelf Registrationinitial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten business days following the effectiveness of such Registration Statement);
(o) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company Corporation and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders of the Registrable Shares) Securities), addressed to such underwriters and each selling holder of Registrable Shares in connection therewithSecurities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Company Corporation for which financial statements and financial data are, or are then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with printed underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by Purchaser and (v) deliver such documents and certificates for as may be reasonably requested by the holders of a majority of the Registrable Shares Securities being sold pursuant to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the such Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder their counsel and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event made pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (6(o)(i) above and direct to evidence compliance with any customary conditions contained in the underwriting agreement or other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing agreement entered into by the Company that the use of the Prospectus may Corporation. The above shall be resumed done at each closing under such underwriting or similar agreement, or as and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is extent required to discontinue disposition of such securities.thereunder;
(dp) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or make available for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.inspecti
Appears in 2 contracts
Sources: Registration Rights Agreement (Academy Sports & Outdoors, Inc.), Registration Rights Agreement (Academy Sports & Outdoors, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereofthereof as promptly as practicable, and, and pursuant thereto, thereto the Company shallshall cooperate in all reasonable respects in the sale of the securities and shall use its reasonable best efforts, as soon promptly as practical as provided hereinpracticable to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such period Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(iiic) use reasonable best efforts to obtain notify each holder of Registrable Securities covered by the withdrawal of any order suspending the effectiveness of any applicable Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of its counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business promptly, and (if requested by any such Person) confirm such notice in writing and provide copies of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and relevant documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after notice thereof is received by the end of such periodCompany, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1i) when the Registration Statement, any pre-effective amendment, the a Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has been filed or become effective;
, (2ii) of any written comments by the SEC, or any request by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for any additional information regarding such Stockholder;
(3whether before or after the effective date of the Registration Statement) or any other correspondence with the SEC relating to, or which may affect, the Registration Statement, (iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the a Registration Statement;
(4) of the receipt Statement or any order by the Company SEC or any other regulatory authority preventing or suspending the use of any notification with respect to preliminary or final Prospectus or the suspension of the qualification initiation or threatening of any Registrable Shares proceedings for sale under the applicable securities or blue sky laws of any jurisdiction; and
such purposes, (5iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 6(r) below cease to be true and correct. For , (v) of the avoidance receipt by the Company of doubtany notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Company has knowledge of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act;
(d) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;
(e) to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company filed any shelf Registration Statement and if requested by a holder of Registrable Securities, the provisions Company shall include in such shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of clauses the securities to such holder of Registrable Securities) in order to ensure that such holder of Registrable Securities may be added to such shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;
(vii)f) if requested by the managing underwriters, (viii) if any, or the holders of a majority of the then issued and (xi) of this Section 5.07(a) shall apply only outstanding Registrable Securities being sold in respect of connection with an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold Offering, promptly include in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish a Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment to the Company applicable Registration Statement such information regarding as the managing underwriters, if any, and such Person and holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, Issuer Free Writing Prospectus or such post-effective amendment as soon as practicable after the Company may from time to time reasonably request in writing in connection with has received such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, request; provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating take any actions under this Section 6(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable Demand Registrationlaw;
(g) furnish or make available to each holder of Registrable Securities covered by the applicable Registration Statement, Piggyback Registration or Shelf Registrationits counsel and each managing underwriter, at least five days prior to the anticipated filing date if any, without charge, as many conformed copies of the Registration Statement, information regarding the Prospectus, any Issuer Free Writing Prospectus, and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (including those incorporated by reference) as such Stockholder holder, counsel or underwriter may reasonably requested request; provided that the Company may furnish or make available any such documents in electronic format;
(h) deliver to each holder of Registrable Securities covered by the applicable Registration Statement, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto and such other documents as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the holders of Registrable Securities covered by the applicable Registration Statement and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(i) prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the holders of Registrable Securities covered by the applicable Registration Statement, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or the managing underwriters reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to achieve be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to taxation or general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(j) cooperate with, and direct the Company’s transfer agent to cooperate with, the holders of Registrable Securities covered by the applicable Registration Statement and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(k) upon the occurrence of, and the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(n) cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;
(o) cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter, if any, to consummate the disposition of such Registrable Securities; provided however that the Company will not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.;
(p) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in Underwritten Offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities;
(q) make such representations and warranties to the holders of Registrable Securities covered by the applicable Registration Statement and the underwriters, if any, in form, substance and scope as are customarily made by issuers in public offerings similar to the offering then being undertaking;
(r) in connection with a customary due diligence review, make available for inspection by a representative of the holders of Registrable Securities covered by the applicable Registration Statement, any underwriter participating in any such disposition of Registrable Securities, if any, and any counsel or accountants retained by such holders or underwriter (collectively, the
Appears in 2 contracts
Sources: Registration Rights Agreement (GNC Holdings, Inc.), Securities Purchase Agreement (GNC Holdings, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use reasonable efforts to effect the registration of joining in a request that any Registrable Shares be registered Securities under the Securities Act and in connection with any distribution of Registrable Securities pursuant thereto as provided in this Agreement (including any sale referred to this Article Vin any Take-Down Notice), the Company shall use reasonable best efforts to effectas promptly as reasonably practicable, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, Agreement:
(i) use commercially reasonable best efforts to prepare and file with the SEC a Registration Statement to effect such registration in accordance with respect the intended method or methods of distribution of such securities and thereafter use commercially reasonable efforts to such Registrable Shares and cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Article VI; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto andthereto, including any prospectus supplements in connection with a sale referred to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationTake-Down Notice, the Company shall will furnish or otherwise make available to the holders of the which are including Registrable Shares covered by Securities in such Registration Statement, their counsel registration (“Selling Holders”) and the lead managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment (which comments will be considered in good faith by the Company) of the counsel (if any) to such counselholders and counsel (if any) to such underwriters, and such other documents reasonably requested by any such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by any such counsel, provide such counsel and the lead managing underwriters, if any, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus prospectus (including any prospectus supplement) included or deemed included therein and such other opportunities to conduct a customary and reasonable due diligence investigation within (in the meaning context of a registered underwritten offering) of the Securities ActCompany, including reasonable access to (including responses to any reasonable inquiries by the lead managing underwriters and their counsel) the Company’s books and records, officers, accountants and other advisors. The Company shall ; provided that the same occurs during normal business hours after reasonable notice and does not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) materially interfere with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion business of the Company’s counsel; provided further that 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 shall be kept confidential by such persons subject to customary exceptions. In no event shall the Purchaser be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, such filing is necessary that if the SEC requests that the Purchaser be identified as a statutory underwriter in the Registration Statement, the Purchaser will have an opportunity to comply with applicable lawwithdraw its Registerable Securities from the Registration Statement;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary and to comply with the extent required by applicable requirements of the Securities Act and law to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect Available pursuant to the disposition terms of all the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementthis Article VI;
(iii) use reasonable best efforts if requested by the lead managing underwriters, promptly include in a prospectus supplement or post-effective amendment such information as the lead managing underwriters, if any, and such holders may reasonably request in order to obtain permit the withdrawal intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any order suspending the effectiveness of any Registration Statementactions under this Section 6.03(a)(iii) that are not, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United Statesopinion of counsel for the Company, in compliance with applicable law;
(iv) deliverfurnish to the Selling Holders and each underwriter, without chargeif any, of the securities being sold by such Selling Holders such number of conformed copies of such Registration Statement and of each amendment and supplement thereto, such number of copies of the preliminary and final Prospectus prospectus and any prospectus supplement thereto as each selling Stockholder may reasonably request contained in order to facilitate the disposition or deemed part of the Registrable Shares of each selling Stockholder covered by such Registration Statement (including each preliminary prospectus supplement) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders and underwriters, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holders;
(v) use reasonable best efforts to register or qualify cause such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required Securities to be kept effective under this Agreement (provided that listed on each securities exchange on which similar securities issued by the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction)are then listed;
(vi) notify each selling Stockholder use reasonable efforts to provide and each distributor cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(vii) as promptly as practicable notify in writing the holders of Registrable Shares identified Securities and the underwriters, if any, of the following events: (A) the filing of the Registration Statement, any amendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment to such Registration Statement utilized in connection therewith, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; (B) any request by the SEC or any other U.S. or state Governmental Entity for amendments or supplements to such Stockholder, Registration Statement or the prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings by any person for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction or the initiation or threat of any proceeding for such purpose; (E) if at any time when a Prospectus relating thereto would be required under the Securities Act representations and warranties of the Company contained in any agreement (including any underwriting agreement) related to such registration cease to be delivered by such distributor, of true and correct in any material respect; and (F) upon the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an 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 Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions clause (including provisions for indemnification, lockups, opinions of counsel and comfort lettersF), and take all that such other customary and notice need not include the nature or details concerning such events;
(viii) use reasonable actions as efforts to obtain the managing underwriters withdrawal of any order suspending the effectiveness of such offering may request Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in order any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be required to facilitate (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (viii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(ix) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable SharesSecurities and their respective counsel in connection with any filings required to be made with FINRA;
(x) prior to any public offering of Registrable Securities, including, causing its officers to use their reasonable best efforts to support register or qualify or cooperate with the marketing Selling 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 applicable state securities or “blue sky” laws of those jurisdictions within the United States as any holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective until the Registration Termination Date; provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the requirements of this clause (x) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(xi) use reasonable efforts to cooperate with the holders to facilitate the timely preparation and delivery of book-entry securities representing Registrable Shares covered Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Convertible Bond and applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such holders may request in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement (including making members of senior management of the Company available at reasonable times cause to be delivered to its transfer agent when and places as required by such transfer agent from time to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)time, adding information requested any authorizations, certificates, directions and other evidence required by the managing underwriters transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the Prospectus, and making such representations and warranties to the holders holder of such shares of Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and Securities under the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viiixii) agrees with each holder of Registrable Securities that, in the case of an connection with any Underwritten Offering in which each selling Stockholder participates or other resale pursuant to a Demand Registrationthe Registration Statement in accordance with the terms hereof, a Piggyback Registration it will use reasonable efforts to negotiate in good faith and execute all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements (in each case on terms reasonably acceptable to the Company), including using reasonable efforts to procure customary legal opinions and auditor “comfort” letters; and
(xiii) to the extent any Purchaser seeks to effect an in-kind distribution of its Registrable Securities to its shareholders, members, partners or an S-3 Shelf Registrationlimited partners, the Company agrees to cooperate with the Purchaser in such distribution and to use reasonable efforts to cause its transfer agent to cooperate with the Purchaser in such distribution, including filing one or more prospectus supplements to evidence the distribution and to register for resale the Registrable Securities distributed to the shareholders, members, partners or limited partners of the Purchaser in such distribution.
(b) To the extent not prohibited by applicable lawlaws, the Company will use reasonable efforts to facilitate and (Aif required) make reasonably available, for inspection by approve or consent to the managing underwriters deposit of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records any or all of the Company and its Subsidiaries and controlled AffiliatesOrdinary Shares, (B) cause which the Purchasers have received by conversion from the Notes, with the ADS Depositary for the issuance of ADSs in connection with a concurrent resale of such ADSs subject to an effective registration statement as described in this Article VI in accordance with the applicable deposit agreement in connection with the Company’s officers and employees ADS program. Without limiting the generality of the foregoing, to supply information reasonably requested the extent permitted by such managing underwriters or law firm or accounting firm in connection with such offeringapplicable laws, (Ci) make the Company’s Auditor available for any Company agrees to execute, deliver and provide such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if anyinstrument or document, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithcarry out any other necessary or appropriate action, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued or required by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement andADS Depositary, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and Purchaser or the managing underwriters underwriter of any Underwritten Offering, if any:
(1ii) when the Company agrees to file, or to cause the ADS Depositary to file, a registration statement on Form F-6 which registers under the Securities Act the maximum number of ADSs that may be issued upon conversion of the Notes in accordance with the terms of the Convertible Bond, (iii) the Company agrees to pay all fees and expenses related to the ADS program in connection with the filing of a Registration Statement, conversion of a Purchaser’s Company Ordinary Shares into ADSs and the sale of ADSs pursuant to the Registration Statement, any pre-effective amendmentincluding in an Underwritten Offering, (iv) the Prospectus or any Prospectus supplement or any post-effective amendment Company agrees to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) maintain its ADS program at least until all of the notification to Registrable Securities have been sold, and (v) the Company by agrees to maintain the SEC ratio of its initiation Company Ordinary Shares to ADSs at a rate of any proceeding with respect 1:1 (or, if the ratio is changed, seek to amend the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect Convertible Bond in a manner to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe ensure that the representations and warranties right of holders of Notes to convert into the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the anticipated number of Registrable Company Ordinary Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountis not adversely affected).
(bc) The Company may require each selling Stockholder Selling Holder and each distributor of Registrable Shares as underwriter, if any, to which any registration is being effected to (i) furnish to the Company in writing such information regarding such Person each Selling Holder or underwriter and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. If the Company requests that the holders of Registrable Securities take any of the actions referred to in connection with this Section 6.03(b), such registrationholders shall take such action promptly and as soon as reasonably practicable following the date of such request.
(cd) Each Stockholder Selling Holder agrees by having its Shares treated as Registrable Shares hereunder that, that upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in clauses (B), (C), (D), (E) and (F) of Section 6.03(a)(vii), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any the applicable Registration Statement (other than those pursuant to a plan that is in effect prior to and prospectus relating thereto until such time and that complies with Rule 10b5-1 of the Exchange Act) until it Selling Holder is advised in writing by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use commercially reasonable efforts to cure the events described in clauses (B), (C), (D), (E) and (F) of Section 6.03(a)(vii) so that the use of the applicable prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesearliest reasonably practicable moment.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Subscription Agreement (Oatly Group AB), Subscription Agreement (Oatly Group AB)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1 or 2.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Holders’ Representative, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the existence of any fact of which the Company becomes aware that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to the last paragraph of this Section 2.4, hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any seller or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction then so qualified or (Cii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least 2 Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.4(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.7 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters underwriter(s) and (v) deliver such documents and certificates as may be reasonably requested by the Holders of any Underwritten Offeringa majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any:
(1) when , to evidence the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) continued validity of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having Cause its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant officers to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering without limitation, by participation in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event “road shows”) taking into account the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article Vbusiness needs; provided, that, neither the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.nor its officers
Appears in 2 contracts
Sources: Registration Rights Agreement (Moneygram International Inc), Securities Purchase Agreement (Moneygram International Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification In connection with the Company's obligations with respect to the Company of joining in a request that any Registrable Shares be registered registration pursuant to this Article V2, and subject to the limitations therein, the Company shall use all commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect or cause the registration and of the Registrable Securities requested to be registered under the Securities Act to permit the sale of such Registrable Shares Securities by the Holders in accordance with the intended method or methods of disposition distribution thereof, and, and pursuant thereto, the Company shall, as soon as practical as provided hereinreasonably possible following any request for such registrations:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC Commission a Registration Statement registration statement on any form selected by the Company which may be used by the Company and which shall permit the disposition of the Registrable Securities in accordance with respect the intended method or methods thereof, and use all commercially reasonable efforts to such Registrable Shares and cause such Registration Statement registration statement or statements to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registration, the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawas soon as possible thereafter;
(ii) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration statement or statements for the period necessary for the distribution contemplated thereby and comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all of the Shares covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth Registrable Securities included in such Registration Statementregistration statement;
(iii) use reasonable best efforts provide the participating Holders and the underwriters (which term, for purposes of this Agreement, shall include a person deemed to obtain be an underwriter within the withdrawal meaning of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension Section 2(11) of the qualification Securities Act), if any, of the securities being sold, counsel for participating Holders and such underwriters copies of such registration statement, each prospectus included therein or exemption from qualification proposed to be filed with the Commission, and each amendment or supplement thereto prior to their filing with the Commission, all of any Registrable Shares which shall be subject to the reasonable approval of such persons; and, subject to the execution of confidentiality agreements in a form reasonably satisfactory to the Company, make available for sale in any jurisdiction in the United States;inspection by such persons such financial
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall promptly notify the selling Stockholders only of the occurrence of such an event participating Holders and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company securities being sold and its material Subsidiaries, and the Registration Statement, Prospectus and documents, (if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to person) confirm such underwriters advice in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
writing (1) when the Registration Statement, any pre-effective amendmentsuch registration statement, the Prospectus prospectus or any Prospectus prospectus supplement or any post-effective amendment to the Registration Statement has been filed filed, and, with respect to the Registration Statement such registration statement or any post-effective amendment, when the same has become effective;
, (2) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the Registration Statement such registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information, (3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of such registration statement or the Registration Statement;
initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by Section 2.2(a)(xi)(1) cease to be true and correct in all material respects, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (6) at any time when a prospectus is required to be delivered under the applicable Securities Act, of the happening of any event as a result of which such registration statement, prospectus, any prospectus supplement or any document incorporated by reference in any of the foregoing contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(v) use all commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement hereunder or any post-effective amendment thereto at the earliest practicable date;
(vi) if requested by the managing underwriter or underwriters or Holders, promptly incorporate in a prospectus, prospectus supplement or post-effective amendment such information as such managing underwriter or underwriters or Holders specify should be included therein relating to the sale of the Registrable Securities, including, without limitation, information with respect to the amount of Registrable Securities being sold to such underwriters, the purchase price being paid
(vii) furnish to participating Holders and each underwriter, if any, of the securities being sold such number of copies of such registration statement, each such amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as participating Holders and each underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by participating Holders; and the Company hereby consents to the use of the prospectus or any amendment or supplement thereto by participating Holders and each underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by the prospectus or any supplement or amendment thereto;
(viii) use all commercially reasonable efforts to (1) register or qualify the Registrable Securities to be included in a registration statement under such other securities laws or blue sky laws of any jurisdiction; and
(5) if at any time such jurisdictions as the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder participating Holders and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), andunderwriter, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possessionany, of the Prospectus covering securities being sold shall reasonably request, (2) keep such registrations or qualifications in effect for so long as the registration statement remains in effect, and (3) take any and all such actions as may be reasonably necessary or advisable to enable participating Holders and each underwriter, if any, to consummate the disposition in such jurisdictions of such Registrable Shares current at the time of receipt of such noticeSecurities owned by participating Holders, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must Company shall not for any purpose be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition qualify to do business as a foreign corporation in any jurisdiction or file a general consent to service of such securities.process in any jurisdiction;
(dix) The Company use commercially reasonable efforts to cause all of the Registrable Securities to be included in a registration statement hereunder to be registered with or approved by such other governmental agencies or authorities as may prepare be necessary by virtue of the business and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure operations of the Company to file a registration statement or any amendment or supplement thereto or enable the participating Holders to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of consummate the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness disposition of such Registration Statement.Registrable Securities;
Appears in 2 contracts
Sources: Registration Rights Agreement (Synagro Technologies Inc), Registration Rights Agreement (Synagro Technologies Inc)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company of joining in a request that any Registrable Shares be registered pursuant is required to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical effect the registration of any Registrable Securities under the Securities Act as provided in this Article VSection 5.1, Section 5.2 or Section 5.3, the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the Commission a registration and the sale of statement to effect such Registrable Shares registration in accordance with the intended method or methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions distribution of this Article V, such securities and thereafter use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement registration statement to become and remain effective (unless it is automatically effective upon filing), pursuant to the terms of this Article V; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationthereto, the Company shall will furnish or otherwise make available to the holders of the Demand Shareholders which are including Registrable Shares covered by Securities in such Registration Statementregistration (“Selling Shareholders”), their counsel and the lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoCommission, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement registration statement and each Prospectus prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectus, prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of Registrable Securities held by the Registrable Shares covered by such Registration Statement (or Requesting Shareholder(s), their counsel) counsel or the lead managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable lawApplicable Law;
(ii) use reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective pursuant to the terms of this Article V, and comply in all material respects with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statementregistration statement;
(iii) use reasonable best efforts to obtain if requested by the withdrawal of any order suspending the effectiveness of any Registration Statementlead managing underwriter(s), if any, or the lifting holders of any suspension a majority of the qualification then outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or exemption from qualification post-effective amendment such information as the lead managing underwriter(s), if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any Registrable Shares for sale in any jurisdiction actions under this Section 5.6(a)(iii) that are not, in the United Statesopinion of counsel for the Company, in compliance with Applicable Law;
(iv) deliverfurnish to the Selling Shareholders and each underwriter, without chargeif any, of the securities being sold by such Selling Shareholders such number of conformed copies of such registration statement and of each amendment and supplement thereto, such number of copies of the prospectus contained in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto summary prospectus) and each free writing prospectus (as each selling Stockholder may reasonably request defined in order to facilitate the disposition Rule 405 of the Registrable Shares of each selling Stockholder covered by such Registration Statement Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Shareholders and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Shareholders;
(v) use reasonable best efforts to register or qualify or cooperate with the Selling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities covered by such registration statement under such other securities laws or “blue sky sky” laws of such U.S. jurisdictions as the Selling Shareholders and any underwriter of the securities being sold by such Selling Shareholders shall reasonably request, and to keep each selling Stockholder reasonably requests and continue such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be registration statement is required to be kept effective under this Agreement (provided and take any other action which may be necessary or reasonably advisable to enable such Selling Shareholders and underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Shareholders, 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 wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (v)) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of cause such Registrable SharesSecurities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such Prospectus shall not contain an untrue statement of a material fact securities are so listed, use reasonable best efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information)NASDAQ Stock Market;
(vii) in use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the case Selling Shareholder(s) thereof to consummate the disposition of an Underwritten Offering in which each selling Stockholder participates pursuant such Registrable Securities;
(viii) use reasonable best efforts to provide and cause to be maintained a Demand Registration, transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a Piggyback Registration or an S-3 Shelf Registration, date not later than the effective date of such registration statement;
(ix) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and use its reasonable best efforts to take all such other customary and reasonable actions as reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the lead managing underwriters of such offering may request in order underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Offering (A) make such representations and warranties to the holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, 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, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause if an underwriting agreement has been entered into, the Company’s officers same shall contain indemnification provisions and employees procedures substantially to supply information the effect set forth in Section 5.9 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the holders of a majority of the Registrable Securities being sold and (C) deliver such documents and certificates as reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder holders of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards a majority of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which Registrable Securities being sold, their counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter(sunderwriters(s), if any, to evidence the continued validity of the representations and counsels warranties made pursuant to sub-clause (A) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the selling holders of the Registrable Sharesextent required thereunder;
(x) to such underwriters and each selling holder of Registrable Shares in connection therewithwith an Underwritten Offering, use reasonable best efforts to obtain for the Selling Shareholders and underwriter(s) (A) opinions of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel Selling Shareholders and underwritersunderwriters and (B) “comfort” letters and updates thereof (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering the matters customarily covered in “comfort” letters in connection with underwritten offerings;
(xi) make available for inspection by the Selling Shareholders, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained in connection with such offering by such Selling Shareholders or underwriter (collectively, the “Inspectors”), financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary, or as shall otherwise be reasonably requested, to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney, agent or accountant in connection with such registration statement; provided, however, that such records and other the Company shall not be required to provide any information provided under clauses this clause (xi) if (A) and the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) above shall be subject to such if either (1) the Company has requested and been granted from the Commission confidential treatment as of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing; unless prior to furnishing any such information with respect to clause (1) or (2) such Selling Shareholder requesting such information enters into, and causes each of its Inspectors to enter into, a confidentiality agreement on terms and conditions reasonably acceptable to the Company; provided, further, that each Selling Shareholder agrees that it will, upon learning that disclosure of such Records is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts sought in a court of competent jurisdiction or by another Governmental Authority, give notice to cause all such Registrable Shares the Company and allow the Company, at its expense, to be listed on each primary securities exchange (if any) on which securities undertake appropriate action seeking to prevent disclosure of the same class issued by the Company are then listedRecords deemed confidential;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) as promptly as practicable notify each selling Stockholder in writing the Selling Shareholders and the managing underwriters of any Underwritten Offeringunderwriters, if any:
, of the following events: (1A) when the Registration Statementfiling of the registration statement, any preamendment thereto, the prospectus or any prospectus supplement related thereto or post-effective amendment, amendment to the Prospectus registration statement or any Free Writing Prospectus supplement utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendmentthereto, when the same has become effective;
; (2B) of any request by the SEC Commission or any other Government Entity U.S. or state governmental authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
information; (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings by any Person for that purpose; (4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdictionjurisdiction or the initiation or threat of any proceeding for such purpose; and
(5E) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any mutual agreement (including any underwriting agreement) contemplated by this Section 5.07 5.6(a)(ix) cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) correct in any material respect; and (xiF) upon the happening of this Section 5.07(a) shall apply only any event that makes any statement made in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares registration statement or related prospectus or any document incorporated or deemed to be sold 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 offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company case of the occurrence registration statement, it will not contain any untrue statement of an event pursuant a material fact or omit to Section 5.07(a)(vi)state any material fact required to be stated therein or necessary to make the statements therein not misleading, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 in the case of the Exchange Act) until prospectus, it is advised will not contain any untrue statement of a material fact or omit to state any material fact necessary in writing by order to make the Company that the use statements therein, in light of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)circumstances under which they were made, not misleading, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time request of receipt any Selling Shareholder, promptly prepare and furnish to such Selling Shareholder a reasonable number of copies of a supplement to or an amendment of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus as may be necessary so that, as thereafter delivered to become the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or remain effective or omit to state a material fact required to be used because stated therein or necessary to make the statements therein, in light of unresolved SEC comments thereon the circumstances under which they were made, not misleading;
(or on any documents incorporated therein by referencexiii) despite the Company’s good faith and use reasonable best efforts to resolve those comments obtain the withdrawal of any order suspending the effectiveness of such registration statement, or overcome such failurethe lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest reasonable practicable date, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Dateexcept that, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior subject to the Registration Termination Date, in which event the Company’s obligations under this requirements of Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering5.6(a)(v).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (xiii) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a Registration Statement general consent to service of process in any such jurisdiction;
(xiv) cooperate with the Selling Shareholders and the lead managing underwriter(s) to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under Applicable Law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the lead managing underwriter(s) or include such Selling Shareholders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(xv) cooperate with each seller of Registrable Shares in a Registration Statement unless it has received from Securities and each Stockholder underwriter or agent participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior disposition of such Registrable Securities and their respective counsel in connection with any filings required to the anticipated filing date be made with FINRA; and
(xvi) have appropriate officers of the Registration StatementCompany prepare and make presentations at a reasonable number of “road shows” and before analysts and rating agencies, as the case may be, and other information regarding such Stockholder meetings reasonably requested organized by the Company and required to achieve effectiveness of such Registration Statement.unde
Appears in 2 contracts
Sources: Shareholder Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to In connection with the Company Company’s Registration obligations under Section 2.01 of joining in a request that any Registrable Shares be registered pursuant to this Article VExhibit, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and effect such Registration to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereofdistribution thereof as promptly as reasonably practicable, and, pursuant thereto, and in connection therewith the Company shall, as soon as practical as provided hereinsubject to Section 2.03 of this Exhibit:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement with respect or Registration Statements on Form S-3 or successor form thereto, and use its reasonable best efforts to such Registrable Shares and cause such Shelf Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Shelf Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of Designee, the Registrable Shares covered by such Registration StatementInitial Holder, their its counsel and the managing underwriter(s)underwriter or underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselthe Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, and such other documents reasonably requested by such counselthe Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, including any comment letter letters from the SEC and proposed response theretoSEC, and, if requested by such counselthe Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, provide such the Designee, the Initial Holder, its counsel and the managing underwriter or underwriters reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Shelf Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand any Registration pursuant to Section 2.01 of this Exhibit to which the holders of a majority of Designee, the Registrable Shares covered by such Registration Statement (or their Initial Holder, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the reasonable opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such pre- and post-effective amendments and supplements to such Shelf Registration Statement and Statement, supplements or amendments to the Prospectus used in connection therewith as may be (A) reasonably requested by the Designee or (B) necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period of time required hereunderby this Exhibit, but no longer than is necessary to complete the distribution and comply with provisions of the Shares covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act securities laws with respect to the sale or other disposition of all the Shares securities covered by such Shelf Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Shelf Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event Designee and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the or underwriters, if any, with respect to the business and (if requested) confirm such advice in writing and provide copies of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and relevant documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after notice thereof is received by the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
Company (xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1a) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the applicable Shelf Registration Statement or any post-effective amendmentamendment thereto has been filed or becomes effective, and when the same applicable Prospectus, and any amendment or supplement to such Prospectus has become effective;
been filed, (2b) of any written comments by the SEC or any request by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the such Shelf Registration Statement or the Prospectus Statement, such Prospectus, or for any additional information regarding such Stockholder;
information, (3c) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Shelf Registration Statement;
(4) of the receipt Statement or any order by the Company SEC or any other regulatory authority preventing or suspending the use of any notification preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, and (d) with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any Registrable Shares for sale under jurisdiction or the applicable securities initiation or blue sky laws threatening of any jurisdiction; andproceeding for such purpose;
(5iv) promptly notify the Designee and the underwriter(s), if at any time any, when the Company has reason to believe that becomes aware of the happening of (A) the representations and warranties of the Company contained in any applicable underwriting agreement (including any underwriting agreement) contemplated by this Section 5.07 cease ceasing to be true and correct. For correct in all material respects and (B) any event as a result of which the avoidance applicable Shelf Registration Statement or Prospectus (as then in effect) contains any untrue statement of doubta material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus or any preliminary Prospectus, in light of the circumstances under which they were made) not misleading, or, if for any other reason it shall be necessary to amend or supplement such Shelf Registration Statement or Prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the Designee and the managing underwriter or underwriters, if any, an amendment or supplement to such Shelf Registration Statement or Prospectus which shall correct such misstatement or omission or effect such compliance;
(v) use its reasonable best efforts to prevent, or obtain the withdrawal of as promptly as possible, any stop order or other order or notice preventing or suspending the use of any preliminary or final Prospectus;
(vi) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the Designee agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) furnish to the Designee, the provisions Initial Holder and each underwriter, if any, without charge, as many conformed copies as the Designee, the Initial Holder or underwriter may reasonably request of clauses the applicable Shelf Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (viiincluding those incorporated by reference), and such other documents, as the Designee, the Initial Holder or such managing underwriter or underwriters may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering;
(viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at deliver to the time Designee, the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder Initial Holder and each distributor underwriter, if any, without charge, as many copies of Registrable Shares as to which the applicable Prospectus (including each preliminary Prospectus) and any registration is being effected to furnish to the Company information regarding amendment or supplement thereto, and such Person and the distribution of such securities other documents as the Company Designee, the Initial Holder or underwriter may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as order to facilitate the disposition of the Registrable Shares hereunder that, upon being advised in writing Securities by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi)Initial Holder or underwriter, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan it being understood that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that consents to the use of the such Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided by the Designee, the Initial Holder and the underwriter(s), if any, in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal connection with the offering and sale of the SEC Registrable Securities covered by such Prospectus or any amendment or supplement thereto;
(ix) on or prior to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or the date on any documents incorporated therein by reference) despite which the Company’s good faith and applicable Shelf Registration Statement becomes effective, use its reasonable best efforts to resolve those comments register or overcome qualify, and cooperate with the Designee, the Initial Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the Registration or qualification (or exemption from such failureRegistration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as the Designee, shall not be a breach the Initial Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such Registration or qualification in effect for such period as required by Section 2.01(b) of this Agreement.
(f) It is further understood and agreed Exhibit; provided, that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;
(x) cooperate with the Designee, the Initial Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriter(s);
(xi) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Shelf Registration Statement to be registered with or include approved by such other governmental agencies or authorities as may be necessary to enable the Designee, the Initial Holder or the underwriter(s), if any, to consummate the disposition of such Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in Securities;
(xii) not later than the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing effective date of the applicable Shelf Registration Statement, information regarding 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;
(xiii) make such Stockholder representations and warranties to the Initial Holder and the underwriters or agents, if any, in form, substance and scope as are customarily made by Company in secondary underwritten public offerings;
(xiv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Designee, the Initial Holder or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities;
(xv) obtain for delivery to the Designee, the Initial Holder and to the underwriter(s), if any, an opinion or opinions from counsel for the Company dated the effective date of the Shelf Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinion or opinions shall be reasonably satisfactory to the Initial Holder or underwriters, as the case may be, and their respective counsel;
(xvi) in the case of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Designee, the Initial Holder, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement; provided that if such cold comfort letters are not provided or such independent certified public accounts are not able to bring down such cold comfort letters to the closing under such underwriting agreement (other than during a Shelf Registration Suspension), then (A) no Takedown shall have been deemed to have occurred until and unless such cold comfort letter is provided and brought down to the closing under such underwriting agreement and (B) the Registration Period will be extended by the number of days equal to the number of days between the date on which any such cold comfort letter is requested to be issued or brought down and the date on which such cold comfort letter is eventually issued or brought down;
(xvii) use its reasonable best efforts to comply with all applicable securities laws and 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 and the rules and regulations promulgated thereunder;
(xviii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Shelf Registration Statement from and after a date not later than the effective date of such Shelf Registration Statement;
(xix) deliver such documents and certificates as may be reasonably requested by the Designee, the Initial Holder, its counsel and the managing underwriter or underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to this Exhibit and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company (the above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder);
(xx) cause all Registrable Securities covered by the applicable Shelf Registration Statement to be listed on each securities exchange on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s securities are then quoted;
(xxi) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Designee, the Initial Holder, by any underwriter participating in any disposition to be effected pursuant to such Shelf Registration Statement and by any attorney, accountant or other agent retained by the Designee, the Initial Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the its officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and required to achieve effectiveness supply all information reasonably requested by any such Person in connection with such Shelf Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility; provided, that any such Person gaining access to information regarding the Company pursuant to this Section 2.02(a)(xxi) shall agree to hold in strict confidence and shall not make any disclosure or use any information regarding the Company that it determines in good faith to be confidential, and of which determination such Person is notified, unless (w) the release of such information is requested or required (by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process), (x) such information is or becomes publicly known other than through a breach of this or any other agreement of which such Person has knowledge, (y) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (z) such information is independently developed by such Person;
(xxii) take no action prohibited by Regulation M under the Exchange Act;
(xxiii) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Shelf Registration Statement.Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xxiv) promptly after the issuance of an earnings release or upon the request of the Designee or Initial Holder, prepare a current report on Form 8-K with respect to such earnings release or a matter of disclosure as
Appears in 2 contracts
Sources: Transaction Framework Agreement (Delta Air Lines Inc /De/), Transaction Framework Agreement (Delta Air Lines Inc /De/)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and and, upon execution of a customary confidentiality agreement, such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1 or 2.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Holders’ Representative, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.3(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to Section 2.4(b), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any Selling Holder or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v)then so qualified, (Bii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (Ciii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.3(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment on which similar securities issued by the Company are then listed, and use its reasonable best efforts to maintain any such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, listing in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);effect.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters of any Underwritten Offeringunderwriter(s), if any:
, and (1v) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request deliver such documents and certificates as may be reasonably requested by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) Holders of a majority of the notification Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the Company by the SEC continued validity of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having Cause its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant officers to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Datewithout limitation, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.part
Appears in 2 contracts
Sources: Exchange Agreement (Americredit Corp), Registration Rights Agreement (Americredit Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Articles 1 and 2 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, make all required filings with FINRA and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to (including any free writing prospectuses under Rule 433 under the extent reasonably practicable, Securities Act (each a “Free Writing Prospectus”) and including such documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including any Free Writing Prospectuses and including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference thereintherein other than any amendment or supplement through incorporation of any report filed under the Exchange Act) with respect to a Demand Registration to which the holders Demand Party, the Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (Statement, or their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts subject to Section 2.5, prepare and file with the SEC such amendments, post-effective amendments and supplements to such each Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the Registrable Securities covered by such period Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
(c) notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3.1(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an Statement, related Prospectus, Free Writing Prospectus, amendment or supplement thereto or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, the Demand Party with respect to the offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Demand Party or Holders, as the case may be, may reasonably request in order to permit the intended method of distribution of such Registrable Securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 3.1(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment, supplement or post-effective amendment thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Article 3, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(h) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Company to enable the seller or sellers thereof or the managing underwriters, if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(j) upon the occurrence of any event contemplated by Section 3.1(c)(vi) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the 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; provided, however, that the Company may defer such supplement or amendment for a period not to exceed sixty (60) days, not more than once in any 180-day period, for any of the reasons set forth in Section 2.4 hereof;
(k) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement (and in connection therewith, if reasonably required by the Company’s transfer agent, the Company will cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to such transfer agent, together with any other authorizations, certificates and directions reasonably required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any legend upon sale by the Holder or the underwriter or managing underwriter of an Underwritten Offering in underwritten offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement);
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the Nasdaq or other national securities exchange on which each selling Stockholder participates pursuant the Common Stock is then listed, prior to a Demand Registrationthe effectiveness of such Registration Statement (or, a Piggyback Registration if no Common Stock issued by the Company is then listed on any securities exchange, use its reasonable best efforts to cause such Registrable Securities to be so listed on the NYSE or an S-3 Shelf RegistrationNasdaq, as determined by the Company);
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Demand Party or the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiariessubsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by selling Holders and the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records if any, opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any), and counsels addressed to the selling holders each of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewithunderwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares addressed to each selling Holder (unless such accountants shall be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date prohibited from so addressing such letters by applicable standards of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aaccounting profession) and each of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offeringunderwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment such letters to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) be in customary form and covering matters of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained type customarily covered in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing “cold comfort” letters in connection with such registration.
underwritten offerings, (civ) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of if an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that underwriting agreement is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article Ventered into, the Company same shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.contain indemnificati
Appears in 2 contracts
Sources: Registration Rights Agreement (Lordstown Motors Corp.), Registration Rights Agreement (Lordstown Motors Corp.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to Securities under the Securities Act as provided in Section 3 or Section 4 of this Article VSchedule C, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shallshall cooperate in the sale of the securities and shall use its reasonable best efforts, as soon promptly as practical as provided hereinpracticable to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that that, before filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference reference, except to the extent that such documents shall have previously been filed with or furnished to the SEC or are in a Registration Statement filed pursuant to a request for a Demand Registrationfinal, executed form), the Company shall furnish or otherwise make available to counsel for the holders of the Registrable Shares Securities covered by such Registration Statement, Statement (who may share such documents with their counsel clients) and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors; provided that nothing in this Section 6(a) is intended to effect any waiver of the Company’s attorney-client or other legal privilege. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments amendment or supplements supplement thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein, except to the extent that such documents shall have previously been filed with or furnished to the SEC or are in final, executed form) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 of the Securities Act;
(c) notify counsel to each selling holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person or such selling holder) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (if such Registration Statement is not an Automatic Shelf Registration Statement), (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceeding for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) of this Schedule C cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any change in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so and that, as thereafter delivered to any prospective purchasers in the case of such Registrable Sharesthe Prospectus, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Shareholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then-issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant a Prospectus supplement or post-effective amendment to a Demand Registration, a Piggyback the applicable Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing Statement such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any action under this Section 6(e) that is not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to counsel for each selling holder of Registrable SharesSecurities and each managing underwriter, includingif any, causing its officers to use their reasonable best efforts to support the marketing without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such counsel, the Registration Statement (including making members of senior management of holder such counsel represents or such underwriter); provided that the Company may furnish or make available at reasonable times and places any such document in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such document in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any Public Offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to taxation or general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legend) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorization, certificate, or direction required by the transfer agent that authorizes and directs the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, or, if later, the Company’s receipt of knowledge of, any event contemplated by Section 6(c)(vi) of this Schedule C, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus (then in effect) or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing Offering Persons in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, Statement; provided, however, that any information that is not generally publicly available at the time periods under this Article V with respect of delivery of such information shall be kept confidential by such Offering Persons except (i) where disclosure of such information is requested or legally compelled (in either case pursuant to the length of time that the effectiveness terms of a Registration Statement must be maintained shall automatically be extended valid and effective subpoena or order issued by the amount a court of time competent jurisdiction or a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement federal, state or local governmental or regulatory body or pursuant to a Prospectuscivil investigative demand or similar judicial process), and references herein (ii) where such information is or becomes generally known to any “supplement” the public other than as a result of a non-permitted disclosure or failure to a Prospectus shall include any safeguard by such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided Offering Persons in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach violation of this Agreement.
, (fiii) It is further understood and agreed that where such information (A) was known to such Offering Persons on a nonconfidential basis (prior to its disclosure by the Company) from a source other than the Company shall that, after reasonable inquiry, is entitled to disclose such information and is not have bound by any obligations under this Section 5.07 at any time on contractual, legal or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior fiduciary obligation of confidentiality to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue Company with respect to such offering until it is so completed information, (but not more than 60 days after B) was in the commencement possession of the offering).
(g) Notwithstanding anything Offering Persons on a nonconfidential basis prior to its disclosure to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested Offering Persons by the Company and required to achieve effectiveness or (C) is subsequently developed by the Offering Persons without using all or any portion of such Registration Statement.information or violating any of the obligations of such Persons under this Agreement or (iv) for disclosure in connection with any suit, arbitration, claim or litigation involving this Agreement or against any Offering Person under federal, state or other securities laws in con
Appears in 2 contracts
Sources: Equity Commitment and Investment Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Registration Procedures. In the case of each Registration, qualification or compliance effected by the Company pursuant to this Section 2, the Company will keep the Investors advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. The Company will:
(a) Whenever a Stockholder requests or provides notification to the Company of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, Prepare and file as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance practicable with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Shares the securities to be Registered and use its best efforts to cause such Registration Statement to become and remain effective (unless it is automatically effective upon filing), until the Investors have completed the distribution described in the Registration Statement relating thereto; provided, however, however that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand RegistrationStatement, the Company shall will furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, and any attorney, accountant or other agent retained by any such holders of Registrable Securities or underwriters (a) copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counselholders, their counsel and underwriters, if any, and such (b) if requested, financial and other documents reasonably requested information required by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity Commission to participate be included in the preparation of such Registration Statement and each Prospectus included therein all financial and other records, pertinent corporate documents and properties of the Company customarily reviewed in connection with an underwritten registration; and shall cause the officers, directors and employees of the Company, counsel to the Company and independent certified public accountants to the Company, to respond to such other opportunities inquiries and supply all information, as shall be necessary, in the opinion of respective counsel to such holders and underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall will not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement or the underwriter, if any, shall, for reasonable reasons, object;
(b) Furnish to the Investor and to each underwriter such number of copies of the Registration Statement and all amendments thereto and the prospectus included therein (including each preliminary prospectus and any amendments or supplements to the prospectus or preliminary prospectus) as such persons may reasonably request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement (or their counsel) or and the managing underwriter(s)Company hereby consents to the use of, in accordance with all applicable laws, of each of the Registration Statement and any amendments thereto and any prospectus and any supplement thereto by each such seller and underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in connection with the opinion offering and sale of the Company’s counsel, Registrable Securities covered by such filing is necessary to comply with applicable lawRegistration Statement);
(iic) use reasonable best efforts to prepare Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith with such Registration Statement as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and or to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such for the period in accordance with the intended methods of disposition set forth in such Registration StatementSection 2.8(a) above;
(iiid) use reasonable Use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities laws of such jurisdictions as shall be reasonably requested by the Investors, to keep such Registration or qualification in effect for so long as the Registration Statement remains in effect, and to take any other action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the securities owned by such seller; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(e) Use its best efforts to (i) obtain the withdrawal of or any order suspending the effectiveness of any such Registration Statement, Statement or sales thereunder at the lifting of any suspension of the qualification or exemption from qualification of any earliest possible time and (ii) cause all Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder Securities covered by such Registration Statement in conformity to be registered with or approved by such other governmental agencies or authorities of United States jurisdictions as may be necessary to enable the requirements seller thereof to consummate the disposition of the Securities Actsuch Registrable Securities;
(vf) use Comply with all applicable rules and regulations of the Commission;
(g) Permit any Investor which, in its reasonable best efforts judgment, might be deemed to register be an underwriter or qualify a controlling person of the Company, to participate in the preparation of such Registrable Shares Registration Statement or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Investor and its counsel should be included;
(h) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering provided the Investors shall also enter into and perform their respective obligations under such other securities or blue sky laws an agreement;
(i) Notify the holders of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as Registrable Securities covered by the applicable Registration Statement may be at any time (i) when a prospectus relating thereto is required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required delivered under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such Registration Statement contains Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading or incomplete in the light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable lawthen existing, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1ii) when the Registration Statement, any pre-effective amendment, the Prospectus prospectus relating thereto or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed filed, and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective;
, (2iii) of any request by the SEC or any other Government Entity Commission for amendments or supplements to the Registration Statement or the Prospectus prospectus or for any additional information regarding such Stockholder;
(3) information, of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement;
Statement or the initiation of any proceedings for such purpose, (4iv) if at any time the representations and warranties of the Company to the Investor in connection with the registration cease to be accurate in all material respects, or (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Shares Securities for sale under in any jurisdiction or the applicable securities initiation or blue sky laws threatening of any jurisdictionproceeding for such purpose;
(j) Use its best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such Registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to each Investor selling Registrable Securities in the offering and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters and the Investor;
(k) Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities not bearing any restrictive legends and in a form eligible for deposit with The Depository Trust Company, or other exchange agent reasonably acceptable to the Company, to be sold and cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holder of Registrable Securities may request at least three (3) business days prior to any sale of Registrable Securities to the underwriters;
(I) Use all reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities covered by the Registration Statement contemplated hereby;
(m) Cause all such Registrable Securities registered pursuant to a Registration Statement that becomes effective to be listed on each securities exchange on which similar securities issued by the Company arc then listed; and
(5n) if at any time the Company has reason to believe that the representations Provide a transfer agent and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of registrar for all Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those Securities registered pursuant to a plan Registration Statement that is in effect prior to becomes effective and a CUSIP number for all such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi)Registrable Securities, and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of case not later than the Prospectus covering such Registrable Shares current at the time of receipt effective date of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securitiesRegistration.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MaxPoint Interactive, Inc.), Investors’ Rights Agreement (MaxPoint Interactive, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 3 or Section 4, the Company shall use its reasonable best efforts to effect, as soon as practical as provided in this Article V, the effect such registration and to permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shallshall cooperate in the sale of the securities and shall use its reasonable best efforts, as soon expeditiously as practical as provided hereinpossible to the extent applicable, to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof and in accordance with this Agreement, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or Statement, their counsel) , or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under if the Securities Act to be delivered by such distributor, Company has knowledge of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the case earliest date reasonably practicable;
(e) if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an Underwritten Offering underwritten offering, promptly include in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration Prospectus supplement or an S-3 Shelf Registration, enter into an underwriting agreement containing post-effective amendment such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions information as the managing underwriters of underwriters, if any, and such offering holders may reasonably request in order to facilitate permit the disposition intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish or make available to each selling holder of Registrable SharesSecurities, includingits counsel and each managing underwriter, causing its officers to use their reasonable best efforts to support the marketing if any, without charge, at least one conformed copy of the Registrable Shares covered Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by the Registration Statement (including making members of senior management of reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Company may furnish or make available at reasonable times and places any such documents in electronic format;
(g) deliver to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering)each selling holder of Registrable Securities, adding information requested by the managing underwriters to the Prospectusits counsel, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with respect the distribution of the Registrable Securities; provided that the Company may furnish or make available any such documents in electronic format (other than, in the case of a Marketed Offering, upon the request of the managing underwriters thereof for printed copies of any such Prospectus or Prospectuses); and the Company, subject to the business last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Company and its material Subsidiaries, selling holders of Registrable Securities and the Registration Statement, Prospectus and documentsunderwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in any such jurisdiction where it would not otherwise be subject but for this Agreement;
(i) cooperate with, and direct the Company’s transfer agent to cooperate with, the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legends) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement and, in connection therewith, if reasonably 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 any Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without restriction upon sale by the holder of such shares of Registrable Securities under the Registration Statement;
(j) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and the 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 each caselight of the circumstances under which they were made, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requestednot misleading;
(viiik) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and prior to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records effective date of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory Registration Statement relating to the managing underwriter(s)Registrable Securities, if any, and counsels to the selling holders of provide a CUSIP number for the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviewsSecurities;
(ixl) use reasonable best efforts to provide and cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Shares Registration Statement from and after a date not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xim) make generally available cause all shares of Registrable Securities covered by such Registration Statement to Stockholders be listed on a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date national securities exchange if shares of the Registration Statement particular class of Registrable Securities are at that time listed on such exchange, as soon as reasonably practicable after the end of such periodcase may be, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment prior to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the such Registration Statement;
(4n) enter into such agreements (including underwriting agreements in form, scope and substance as is customary in underwritten offerings and such other documents reasonably required under the terms of such underwriting agreements, including customary legal opinions and auditor “comfort” letters) and take all such other actions reasonably requested by the holders of a majority of the receipt Registrable Securities being sold in connection therewith (including those reasonably requested by the Company managing underwriters, if any) to expedite or facilitate the disposition of any notification such Registrable Securities;
(o) in connection with respect to the suspension a customary due diligence review, make available for inspection by a representative of the qualification selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Shares for sale under Securities, if any, and any counsel or accountants retained by such selling holders or underwriter (collectively, the applicable securities or blue sky laws of any jurisdiction; and
(5) if “Offering Persons”), at any time the Company has reason to believe that the representations offices where normally kept, during reasonable business hours, all financial and warranties other records, pertinent corporate documents and properties of the Company contained and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only customary due diligence sessions in respect of an Underwritten Offering and only if (based on market prices at the time the offering is each case reasonably requested by any such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing representative, underwriter, counsel or accountant in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such noticeStatement, provided, however, that any information that is not generally publicly available at the time periods under this Article V of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order or in connection with respect an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the length rules and regulations of time that the effectiveness SEC), (iii) such information is or becomes generally available to the public other than as a result of a Registration Statement must be maintained shall automatically be extended non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the amount of time Company) from a Stockholder is required source other than the Company when such source, to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure knowledge of the Company Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed information, (but not more B) becomes available to the Offering Persons from a source other than 60 days after the commencement Company when such source, to the knowledge of the offering).
(g) Notwithstanding anything Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the contrary in this Article VCompany with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the Company Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall not be required to file give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating Prospectus under this Agreement and except in the applicable Demand Registrationcase of clause (i) above when a proposed disclosure is in connection with a routine audit or examination by, Piggyback Registration or Shelf Registrationa blanket document request from, at least five days prior to the anticipated filing date a regulatory or self-regulatory authority, bank examiner or auditor); and
(p) cooperate with each seller of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.Registrable S
Appears in 2 contracts
Sources: Registration Rights Agreement (Crocs, Inc.), Investment Agreement (Crocs, Inc.)
Registration Procedures. In connection with the Company’s registration obligations under this Agreement, with respect to each such Registration Statement:
(a) Whenever a Stockholder requests or provides notification Prior to the Company filing of joining in a request that any Registrable Shares be registered pursuant to this Article V, the Company shall use reasonable best efforts to effect, as soon as practical as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement or any related Prospectus or any amendments amendment or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationsupplement thereto, the Company shall furnish or otherwise make available to the holders Shareholder (or its Designee, who shall be an affiliate of the Registrable Shares covered by such Registration Statement, their Shareholder (the “Designee”)) and its counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference thereinto the extent requested by such Person). The Shareholder (or its Designee) with respect and its counsel shall have the right to a Demand Registration provide comments to which the holders of a majority of the Registrable Shares covered by such Registration Statement to the Company within five (5) business days of the Shareholder’s (or their counselits Designee’s) receipt of such Registration Statement. The Company shall use commercially reasonable efforts to reflect in the Registration Statement or the managing underwriter(s)any such Prospectus or any amendments or supplements thereto, such comments, if any, the Shareholder (or its Designee) or its counsel shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;propose.
(iib) use reasonable best efforts Subject to Section 4(i), the Company shall prepare and file with the SEC such amendments and supplements to the Registration Statement (including any Exchange Act documents incorporated by reference in such Registration Statement Statement) and the Prospectus used in connection therewith with such Registration Statement as may be necessary to comply with keep the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period as required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, herein and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such the Registration Statement; and use commercially reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Securities or Registrable Warrant Securities, as the case may be, covered by the Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;
(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts as so amended or such Prospectus as so supplemented. Subject to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 4(i), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use commercially reasonable best efforts to prepare, as soon as practical, a supplement or amendment respond to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light comments of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, SEC with respect to the Registration Statement with seven (7) business days of receipt thereof.
(c) As promptly as reasonably practicable, the Company shall give notice to each Selling Shareholder and its material Subsidiaries, and the Registration Statementcounsel: (i) when any Prospectus, Prospectus and documentssupplement, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become been declared effective;
, (2ii) of any request written request, following the effectiveness of the Registration Statement under the Securities Act, by the SEC or any other Government Entity federal or state governmental authority for amendments or supplements to the Registration Statement or the related Prospectus or for any additional information regarding such Stockholder;
information, (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement;
Statement or the initiation or written threat of any proceedings for that purpose, (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities or Registrable Warrant Securities, as the case may be, for sale in any jurisdiction or the initiation or the written threat of any proceeding for such purpose, (v) of the occurrence of a Material Event (but not the nature of or details concerning such Material Event) and (vi) of the determination by the Company that a post-effective amendment to the Registration Statement or Prospectus supplement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 4(i)), state that it constitutes a Deferral Notice, in which event the provisions of Section 4(i) shall apply.
(d) The Company shall use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities or Registrable Warrant Securities, as the case may be, for sale in any jurisdiction.
(e) The Company shall furnish to each Selling Shareholder, without charge, at least one conformed copy of the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by a Selling Shareholder, and all exhibits to the extent requested by a Selling Shareholder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC.
(f) The Company shall promptly deliver to each Selling Shareholder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Selling Shareholder may reasonably request in connection with resales by such Selling Shareholder of Registrable Securities or Registrable Warrant Securities, as the case may be. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each Selling Shareholder in connection with the offering and sale of the Registrable Securities or Registrable Warrant Securities, as the case may be, covered by such Prospectus and any amendment or supplement thereto.
(g) The Company shall use commercially reasonable efforts to register and qualify the Registrable Securities or Registrable Warrant Securities, as the case may be, held by the Selling Shareholders covered by the Registration Statement under the applicable such securities or blue sky laws of such states as may be reasonably necessary or advisable to enable each Selling Shareholder to consummate the disposition of the Registrable Securities or Registrable Warrant Securities, as the case may be, held by such Selling Shareholder in such states; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction; and.
(5h) if at any time If requested by a Selling Shareholder, the Company has reason shall cooperate with such Selling Shareholder to believe that facilitate the representations timely preparation and warranties delivery of certificates representing Registrable Securities or Registrable Warrant Securities, as the case may be, to be delivered to a transferee pursuant to the Registration Statement and to enable such Registrable Securities or Registrable Warrant Securities, as the case may be, to be in such denominations and registered in such names as any such Selling Shareholder may request.
(i) Upon (i) the issuance by the SEC of a stop order suspending the effectiveness of the Company contained in any agreement Registration Statement or the initiation of proceedings with respect to the Registration Statement under Section 8(d) or 8(e) of the Securities Act; (including any underwriting agreementii) contemplated by this Section 5.07 cease such time as the Registration Statement or related Prospectus omits information required to be true contained therein; (iii) the occurrence of any event or the existence of any fact or circumstance or the passage of time as a result of which the Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein 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 (a “Material Event”); or (iv) the occurrence, existence or pendency of any corporate development that, in the reasonable discretion of the board of directors of the Company, makes it detrimental to the Company for the Registration Statement and correct. For the avoidance of doubtrelated Prospectus to be available, (A) in the provisions case of clauses (vii), (viiiii) and (xiiii) of this Section 5.07(aabove, subject to the next sentence, the Company shall as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into the Registration Statement and Prospectus so that (x) shall apply only all information required to be contained in respect of an Underwritten Offering and only if the Registration Statement or related Prospectus is contained or incorporated reference therein, or (based on market prices at the time the offering is requested by such Stockholdery) the number Registration Statement does not contain any untrue statement of Registrable Shares a material fact or omit to state any material fact required to be sold stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder light of at least the Minimum Amount.
(b) The Company may require circumstances under which they were made, not misleading, in each selling Stockholder and each distributor of Registrable Shares case, as to which any registration is being effected to furnish thereafter delivered to the Company information regarding such Person and purchasers of the distribution of such securities Registrable Securities or Registrable Warrant Securities, as the case may be, being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use commercially reasonable efforts to cause it to be declared effective as promptly as is reasonably practicable, and (B) the Company may from time shall give notice to time reasonably request in writing in connection with each Selling Shareholder, counsel for such registration.
Selling Shareholder and underwriter, if any, that the availability of the Registration Statement is suspended (ca “Deferral Notice”) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder thatand, upon being advised in writing by receipt of any Deferral Notice, each Selling Shareholder agrees not to sell any Registrable Securities or Registrable Warrant Securities, as the Company case may be, pursuant to the Registration Statement until such Selling Shareholder’s receipt of copies of the occurrence of an event pursuant to Section 5.07(a)(vi)supplemented or amended Prospectus or amended Registration Statement, each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) 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 commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clauses (i)-(iii) above, as promptly as is reasonably practicable, and is furnished with a supplemented or amended Prospectus (y) in the case of clause (iv) above, as contemplated by Section 5.07(a)(vi), and, if so directed by soon as in the reasonable discretion of the board of directors of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 4(i) with respect to clauses (ii), (iii) and (iv) above, to suspend the availability of the Registration Statement or any Prospectus, for no more than 45 days in any single period (or 60 days in the event of a Material Event pursuant to which the Company has delivered a second notice as specified below) and no more than 90 days during any 12-month period (each Stockholder will a “Deferral Period”). Notwithstanding the foregoing, in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the Company may deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such Selling Shareholders a second notice, providedwhich shall have the effect of extending the Deferral Period by up to an additional 15 days, however, that the time periods under this Article V with respect to the length or such shorter period of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder as is required to discontinue disposition of specified in such securitiessecond notice.
(dj) The Company may prepare and deliver an issuer free-writing prospectus (require each Selling Shareholder to furnish to the Company a certified statement as such term is defined in Rule 405 under to the Securities Act) in lieu number of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure securities of the Company to file a registration statement or any amendment or supplement thereto or to cause any beneficially owned by such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02Selling Shareholder and, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of if required by the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article VSEC, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it person thereof that has received from each Stockholder participating in voting and dispositive control over the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statementsecurities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Delta Products CORP), Registration Rights Agreement (Delta International Holding Ltd.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to the Company of joining in a Holders request that any Registrable Shares Securities be registered pursuant to this Article VSection 2.1 or Section 2.2, subject to the provisions of those Sections, the Company shall will use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the offer and sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereof, and, pursuant thereto, the Company shall, thereof as soon as practical as provided hereinreasonably practicable, and shall, in connection with any such request, other than during any Postponement Period, use commercially reasonable efforts to:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to on an appropriate registration form of the SEC for the disposition of such Registrable Shares Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such Registration Statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its commercially reasonable efforts to cause such Registration Statement to become effective and remain continuously effective for such period as the Holders shall request, and no less than one hundred eighty (unless it is automatically effective upon filing)180) days, (provided, however, that as far in advance as reasonably practicable before filing a Registration Statement or Prospectus or any amendments or supplements thereto andthereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any Free Writing Prospectus related thereto, or before sending a response to the extent reasonably practicable, documents that would be incorporated by reference or deemed an SEC comment letter prior to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany such filing, the Company shall will furnish or otherwise make available to counsel for the holders of Holders participating in the Registrable Shares covered by such Registration Statement, their planned offering and to one counsel and for the managing underwriter(s)underwriter, if any, copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits theretothereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the reasonable review and reasonable comment of such counselcounsel (including any reasonable objections to any information pertaining to the Holders and their plan of distribution and otherwise to the extent necessary, if at all, to complete the filing or maintain the effectiveness thereof), and make the Company’s representatives reasonably available for discussion of such other documents document and make such changes in such document concerning the Holders prior to the filing thereof as counsel for the Holders or underwriters may reasonably request, and the Company shall consider in good faith the changes reasonably and timely requested by such counsel, including any comment letter from the SEC counsel and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectusamendment thereto, any Prospectus or supplement thereto or any amendments or supplements Free Writing Prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Holders or the managing underwriter(s)underwriters, if any, shall reasonably and timely object); provided, that notwithstanding the foregoing, in writing, on a timely basis, unlessno event shall the Company be required to file any document with the SEC that, in the opinion reasonable view of the Company’s Company or its counsel, such filing is contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to comply with applicable lawmake any statement therein not misleading;
(iib) use reasonable best efforts to (i) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, specified in paragraph (a) above and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement during such period and any Prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act in accordance with the Holders’ intended methods method of disposition set forth in such Registration StatementStatement for such period and (ii) provide reasonable notice to the Holders and the managing underwriter(s), if any, to the extent that the Company determines that a post-effective amendment to a Registration Statement would be appropriate;
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverfurnish, without charge, to the Holders and each underwriter, if any, of the Registrable Securities such number of copies of the preliminary such Registration Statement, each amendment and final Prospectus and any supplement thereto as (in each selling Stockholder may reasonably request case including all exhibits), the Prospectus, each Free Writing Prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in all material respects in conformity with the requirements of the Securities Act, and other documents, as the Holders and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by the Holders (the Company hereby consenting to the use in accordance with all applicable Laws of each such Registration Statement (or amendment or post-effective amendment thereto) and each such Prospectus or Free Writing Prospectus by the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement or Prospectus);
(vd) use reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares Registration Statement under such other the securities or “blue sky laws sky” Laws of such U.S. jurisdictions as each selling Stockholder the Holders or, in the case of a Public Offering, the managing underwriter reasonably requests shall request and continue such registration do any and all other acts and things which may be reasonably necessary or qualification in effect advisable to enable the Holders to consummate the disposition in such jurisdictions of the Registrable Securities beneficially owned by them; provided, that the Company shall not for as long as the applicable Registration Statement may any such purpose be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do transact business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified, to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vie) promptly notify each selling Stockholder the Holders and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwritersunderwriter, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
: (viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1i) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or related thereto, any post-effective amendment to the Registration Statement or any Free Writing Prospectus has been filed with the SEC and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, including copies of any additional information regarding such Stockholder;
and all transmittal letters and other correspondence with the SEC and all correspondence (3) including comment letters and a copy of the notification Company’s draft responses thereto), from the SEC to the Company relating to such Registration Statement or any Prospectus or any amendment or supplement thereto (but not, for the avoidance of doubt, any documents incorporated by the SEC reference therein); (iii) of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
Statement or the initiation of any proceedings for that purpose; or (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky laws sky” Laws of any jurisdiction; andjurisdiction or the initiation of any proceeding for such purpose;
(5f) if at any time (i) any event or development shall occur or condition shall exist as a result of which the Disclosure Package, as then amended or supplemented, would include 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 existing when the Disclosure Package is delivered to a purchaser, not misleading, or (ii) it is necessary to amend or supplement the Disclosure Package to comply with Law, the Company has reason will promptly notify the Holders and each managing underwriter, if any, and promptly prepare and file with the SEC (to believe the extent required) and furnish to the Holders and each underwriter, if any, such amendments or supplements to the Disclosure Package as may be necessary so that the representations and warranties statements in the Disclosure Package, as so amended or supplemented, will not, in the light of the Company contained in any agreement circumstances existing when the Disclosure Package is delivered to a purchaser, be misleading, or so that the Disclosure Package will comply with Law;
(including any underwriting agreementg) contemplated by this Section 5.07 cease make generally available to be true and correct. For its security holders, as soon as reasonably practicable, an earnings statement covering the avoidance period of doubtat least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of a Registration Statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158;
(viii) list the Registrable Securities covered by such Registration Statement on Nasdaq or any other national securities exchange selected by the Company, if the listing of such Registrable Securities is then permitted under the rules of such exchange and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(i) cause its officers, employees and registered independent public accounting firm (in the case of the registered independent public accounting firm, subject to any applicable accounting guidance regarding their participation in the offering or the due diligence process) to participate at reasonable times and for reasonable periods in, make themselves reasonably available, supply such information as may reasonably be requested and to otherwise facilitate and cooperate with, the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto, taking into account the Company’s reasonable business needs;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the applicable effective date of such Registration Statement and, in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(k) if the offering is underwritten pursuant to a Demand Registration Request, then at the request of the Holders, (i) enter into such customary agreements (including underwriting agreements in customary form) and take all such other customary actions as the Holders reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be a party to any such underwriting agreement), (viiiii) have members of its management participate in due diligence sessions and, in the case of marketed offerings, support the marketing of the Registrable Securities covered by the registration (including, without limitation, participation in investor calls and “road shows”), and (xiiii) furnish to the underwriters a customary legal opinion and disclosure letter from counsel to the Company and customary comfort letters from the registered independent public accounting firm retained (and brought down to the closing under the underwriting agreement);
(i) obtain an opinion from the Company’s counsel and a “comfort” letter and updates thereof from the independent public accountants who have certified the Company’s financial statements (and/or any other financial statements) included or incorporated by reference in such Registration Statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “comfort” letters (including, in the case of this Section 5.07(asuch “comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten Public Offerings, which opinion and letter shall apply only be dated as of the dates such opinions and “comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters and (ii) furnish to each underwriter a copy of such opinion and letter addressed to such underwriter;
(m) deliver promptly to counsel for the Holders and to each managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the Registration Statement, and, make reasonably available for inspection by counsel for the Holders, by counsel for any underwriter participating in respect any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by the Holders or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of an Underwritten Offering the Company, and only if (based on market prices at cause all of the time the offering is Company’s officers, directors and employees to supply all information reasonably requested by any such Stockholdercounsel for the Holders, counsel for an underwriter, accountant or agent in connection with such Registration Statement;
(n) in connection with the number preparation and filing of each Registration Statement registering Registrable Securities under the Securities Act, and before filing any such Registration Statement or any other document in connection therewith, include in such documents any comments reasonably and timely made by the Holders or their legal counsel; participate in, and make documents available for, the reasonable and customary due diligence review of underwriters during normal business hours, on reasonable advance notice and without undue burden or hardship on the Company;
(o) use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to use its commercially reasonable efforts to promptly obtain the withdrawal of such order or suspension and to notify the Holders of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose;
(p) comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the SEC and reasonably cooperate with the Holders in the disposition of its Registrable Securities in accordance with the method of distribution described in the Prospectus included in any Registration Statement, such cooperation to include the endorsement and transfer of any certificates representing Registrable Securities (or a book-entry transfer to similar effect) transferred in accordance with this Agreement and delivery of any necessary instructions or opinions to the Company’s transfer agent in order to cause the transfer agent to allow Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing as permitted by Law;
(q) ensure that any Free Writing Prospectus utilized in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated registration covered by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company 2.1 or Section 2.2 complies in all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V material respects with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby, will not conflict with a related Prospectus, Prospectus supplement and related documents and, when taken together with the related Prospectus, Prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(r) cooperate with the managing underwriters, if any, the Holders and their respective counsel in lieu connection with the preparation and filing of any supplement applications, notices, registrations and responses to a Prospectusrequests for additional information with FINRA, and references herein to Nasdaq or any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.other national securities exchange on which the Shares are listed;
(es) It is understood and agreed that any failure of pay the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.applicable Expenses;
(ft) It is further understood cooperate with the Holders and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.man
Appears in 2 contracts
Sources: Registration Rights Agreement (Loyalty Ventures Inc.), Registration Rights Agreement (Alliance Data Systems Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required by the provisions of joining in a request that any Registrable Shares be registered pursuant this Agreement to this Article V, the Company shall use its reasonable best efforts to effect, as soon as practical effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Article V, the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and, pursuant theretoAgreement, the Company shall, as soon expeditiously as practical as provided herein:possible (but, in any event, within sixty (60) days after a Demand Registration Request in the case of Section 2.4(a) below):
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Shares Securities in accordance with the intended method of disposition thereof (including, without limitation, a Partner Distribution), which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain continuously effective for such period as any Participating Holder pursuant to such registration statement shall request (unless it is automatically effective upon filing), provided, however, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto andthereto, to the extent reasonably practicableor comparable statements under securities or state “blue sky” laws of any jurisdiction, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a request for a Demand Registrationany free writing prospectus related thereto, the Company shall will furnish or otherwise make available to one counsel for the holders of Holders participating in the Registrable Shares covered planned offering (selected by such Registration Statement, their the Majority Participating Holders) and to one counsel and for the managing underwriter(s)Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to the reasonable review and reasonable comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement registration statement or Prospectusamendment thereto, any prospectus or supplement thereto or any amendments or supplements free writing prospectus related thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) Majority Participating Holders or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law);
(iii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement registration statement continuously effective for the relevant such period required hereunder, but no longer than is necessary as any Participating Holder pursuant to complete the distribution of the Shares covered by such Registration Statement, registration statement shall request and to comply with the applicable requirements provisions of the Securities Act with respect to the sale or other disposition of all the Shares Registrable Securities covered by such Registration Statement during such period registration statement in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statementregistration statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of the Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(iiic) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction in the United States;
(iv) deliverfurnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary and final Prospectus prospectus and any supplement thereto as summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each selling Stockholder may reasonably request free writing prospectus utilized in order to facilitate the disposition of the Registrable Shares of connection therewith, in each selling Stockholder covered by such Registration Statement case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(vd) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Shares registration statement under such other securities or state “blue sky sky” laws of such U.S. jurisdictions as each selling Stockholder any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably requests request in writing, and continue do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect in such jurisdictions for as so long as such registration statement remains in effect), except that in no event shall the applicable Registration Statement may Company be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise not, but for the requirements of this paragraph (d), be required to qualify but for this subparagraph (v)be so qualified, (B) to subject itself to taxation in any such jurisdiction or (C) to consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(vii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders of the Registrable Shares) to such underwriters and each selling holder of Registrable Shares in connection therewith, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xiie) promptly notify each selling Stockholder Participating Holder and the each managing underwriters of any Underwritten Offeringunderwriter, if any:
: (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement or related thereto, any post-effective amendment to the Registration Statement registration statement or any free writing prospectus has been filed and, with respect to the Registration Statement registration statement or any post-effective amendment, when the same has become effective;
; (2ii) of any request by the SEC or any other Government Entity state securities authority for amendments or supplements to the Registration Statement registration statement or the Prospectus prospectus related thereto or for any additional information regarding such Stockholder;
information; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
registration statement or the initiation of any proceedings for that purpose; (4iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares Securities for sale under the applicable securities or state “blue sky sky” laws of any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and
(5v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including contemplated by any underwriting agreement) contemplated by this Section 5.07 , securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct. For correct in all material respects; and, if the avoidance notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of doubtcopies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within forty-five (45) days, or ninety (90) days if it is a fiscal year, after the end of such twelve month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of clauses Section 11(a) of the Securities Act and Rule 158 thereunder;
(viig) (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (viiiB) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by no similar securities are then so listed, to cause all such Stockholder) the number of Registrable Shares Securities to be sold listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the Minimum Amount.requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(bh) The provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company may require make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(j) use its reasonable best efforts in any underwritten offering to obtain an opinion from the Company’s counsel and a “cold comfort” letter and updates thereof from the Company’s independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, in each selling Stockholder case, in customary form and each distributor covering such matters as are customarily covered by such opinions and “cold comfort” letters (including, in the case of Registrable Shares as to which any registration is being effected to furnish such “cold comfort” letter, events subsequent to the Company information regarding date of such Person financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and “cold comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any;
(k) deliver promptly to each managing underwriter, if any, copies of all correspondence between the SEC and the distribution Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such securities confidentiality agreements as the Company may from time reasonably request, make reasonably available for inspection by counsel for any underwriter participating in any distribution to time be effected pursuant to such registration statement and by any accountant or other agent retained by any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably request in writing requested by any such counsel, accountant or agent in connection with such registration.registration statement;
(cl) Each Stockholder agrees use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(o) prior to the filing of any document which is to be incorporated by having its Shares treated reference into the registration statement or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document prior to the filing thereof as Registrable Shares hereunder thatcounsel for the underwriters may reasonably request;
(p) furnish to counsel for each Participating Holder and to each managing underwriter, without charge, upon being advised in writing by the Company request, at least one copy of the occurrence of an event pursuant to Section 5.07(a)(viregistration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), each Stockholder will immediately discontinue (and direct any other Persons making offers prospectus filed under Rule 424 under the Securities Act and sales all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(q) cooperate with the Participating Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least three (3) Business Days prior to any sale of Registrable Shares Securities to immediately discontinuethe underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least three (3) offers and sales Business Days prior to any sale of Registrable Shares pursuant Securities and instruct any transfer agent and registrar of Registrable Securities to release any Registration Statement stop transfer orders in respect thereof;
(other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of r) take no direct or indirect action prohibited by Regulation M under the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, ; provided, however, that the time periods under this Article V with respect to the length of time extent that any prohibition is applicable to the effectiveness of a Registration Statement must be maintained shall automatically be extended by Company, the amount of time a Stockholder Company will take such action as is required necessary and feasible to discontinue disposition of make any such securities.prohibition inapplicable;
(ds) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within use its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments cause the Registrable Securities covered by the applicable registration statement to be registered with or overcome approved by such failureother governmental agencies or authorities as may be necessary to enable the Participating Holders or the underwriters, shall not be a breach if any, to consummate the disposition of this Agreement.such Registrable Securities;
(ft) It take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(u) take all reasonable action to ensure that any free writing prospectus utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material respects with the Securities Act, is further understood and agreed that filed in accordance with the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior Securities Act to the Registration Termination Dateextent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement light of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.cir
Appears in 2 contracts
Sources: Registration Rights Agreement (MRC Global Inc.), Registration Rights Agreement (MRC Global Inc.)
Registration Procedures. (a) Whenever a Stockholder Shareholder requests or provides notification to the Company of joining in a request that any Registrable Shares Securities be registered pursuant to this Article VSection 2.01 or 2.02, subject to the provisions of such Sections, the Company shall use its commercially reasonable best efforts to effect, as soon as practical as provided in this Article V, effect the registration and the sale of such Registrable Shares Securities in accordance with the intended methods method of disposition thereof, thereof as quickly as practicable and, pursuant thereto, the Company shall, as soon as practical as provided hereinin connection with any such request:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to The Company shall prepare and file with the SEC a Registration Statement registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect the intended method of distribution thereof, and use its commercially reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Registering Shareholders included in such registration statement shall have actually been sold thereunder).
(b) Prior to filing a registration statement or prospectus or any amendment or supplement thereto, the Company shall, if requested, furnish to each participating Shareholder and each underwriter, if any, of the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, and thereafter, to the extent such documents are not publicly available on the SEC’s E▇▇▇▇ website, the Company shall furnish to such Registrable Shares Shareholder and cause each underwriter, 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 be incorporated therein by reference, and all exhibits to the extent requested by such Registration Statement Shareholder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC. The Shareholder shall have the right to become effective (unless it is automatically effective upon filing)request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Shareholder and the Company shall use its commercially reasonable efforts to comply with such request; provided, however, that before filing the Company shall not have any obligation so to modify any information if the Company reasonably expects that doing so would cause the prospectus to contain an untrue statement of a Registration Statement material fact or Prospectus or omit to state any amendments or supplements thereto and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed material fact required to be incorporated by reference in a Registration Statement filed pursuant stated therein or necessary to a request for a Demand Registrationmake the statements therein not misleading.
(c) After the filing of the registration statement, the Company shall furnish or otherwise make available (i) cause the related prospectus to the holders of the Registrable Shares covered be supplemented by such Registration Statementany required prospectus supplement, their counsel and the managing underwriter(s)and, if anyas so supplemented, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject pursuant to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response thereto, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of Rule 424 under the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, and to comply with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares Registrable Securities covered by such Registration Statement registration statement during such the applicable period in accordance with the intended methods of disposition by the Registering Shareholders thereof set forth in such Registration Statement;
registration statement or supplement to such prospectus and (iii) promptly notify each Registering Shareholder holding Registrable Securities covered by such registration statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its commercially reasonable best efforts to obtain (i) register or qualify the withdrawal Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Shares for sale in any jurisdiction such jurisdictions in the United States;
States as any Registering Shareholder holding such Registrable Securities reasonably (ivin light of such Shareholder’s intended plan of distribution) deliver, without charge, requests and (ii) cause such number of copies Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the preliminary business and final Prospectus operations of the Company and do any supplement thereto as each selling Stockholder and all other acts and things that may be reasonably request in order necessary or advisable to facilitate enable such Shareholder to consummate the disposition of the Registrable Shares of each selling Stockholder covered Securities owned by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (Shareholder; provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (vSection 2.04(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);.
(vie) The Company shall immediately notify each selling Stockholder and each distributor of Registering Shareholder holding such Registrable Shares identified Securities covered by such Stockholderregistration statement, at any time when a Prospectus prospectus relating thereto would is required to be required delivered under the Securities Act to be delivered by such distributorAct, of the occurrence of any an event as a result requiring the preparation of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus prospectus so that, as thereafter delivered to any prospective the purchasers of such Registrable SharesSecurities, such Prospectus shall prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading (which notice shall notify and promptly prepare and make available to each such Shareholder and file with the selling Stockholders only of the occurrence of SEC any such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);supplement or amendment.
(viif) The Company shall select an underwriter or underwriters in connection with any Public Offering. In connection with any Public Offering, the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, Company shall enter into customary agreements (including an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters), in customary form) and take such all such other customary and reasonable actions as the managing underwriters of such offering may request are reasonably required in order to expedite or facilitate the disposition of such Registrable SharesSecurities in any such Public Offering, including, causing its officers to use their reasonable best efforts to support including the marketing engagement of a “qualified independent underwriter” in connection with the qualification of the Registrable Shares covered by underwriting arrangements with the Registration Statement NASD.
(including making members g) Upon execution of senior management of confidentiality agreements in form and substance reasonably satisfactory to the Company, the Company shall make available at reasonable times for inspection by any Registering Shareholder and places to participate any underwriter participating in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the Prospectus, and making such representations and warranties to the holders of such Registrable Shares and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
(viii) in the case of an Underwritten Offering in which each selling Stockholder participates any disposition pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and to the extent not prohibited by applicable law, (A) make reasonably available, for inspection registration statement being filed by the managing underwriters of Company pursuant to this Section 2.04 and any attorney, accountant or other professional retained by any such offering Shareholder or underwriter (collectively, the “Inspectors”), all financial and one law firm and accounting firm acting for such managing underwritersother records, pertinent corporate documents and financial and other records properties of the Company (collectively, the “Records”) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers officers, directors and employees to supply all information reasonably requested by such managing underwriters or law firm or accounting firm any Inspectors in connection with such offeringregistration statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (Ci) make disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company’s Auditor available . The Shareholder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such managing underwriters’ due diligence information is made generally available to the public. The Shareholder further agrees that, upon learning that disclosure of such Records is required by court or administrative order or necessary to respond to inquiries of regulatory authorities, it shall give prompt notice to the Company in advance of such disclosure and have them provide customary comfort letters allow the Company to such underwriters in connection therewith undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company shall furnish to each Registering Shareholder and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriter, if any, and counsels to the selling holders of the Registrable Shares) a signed counterpart, addressed to such underwriters Shareholder or underwriter, of a comfort letter or comfort letters from the Company’s independent public accountants, in form and each selling holder of Registrable Shares substance as are customary in connection therewith, covering the matters customarily covered in opinions requested in with underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; provided, however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amountpublic offerings.
(bi) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected such Registering Shareholder promptly to furnish in writing to the Company such information regarding such Person and the distribution of such securities the Registrable Securities as the Company may from time to time reasonably request in writing and such other information as may be legally required in connection with such registration.
(cj) Each Stockholder The Shareholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by receipt of any notice from the Company of the occurrence happening of an any event of the kind described in Section 2.04(e), such Shareholder shall forthwith discontinue disposition of Registrable Securities pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of the registration statement covering such Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to Securities until such time and that complies with Rule 10b5-1 Shareholder’s receipt of the Exchange Act) until it is advised in writing by the Company that the use copies of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as prospectus contemplated by Section 5.07(a)(vi2.04(e), and, if so directed by the Company, each Stockholder will such Shareholder shall deliver to the Company all copies, other than any permanent file copies then in each Stockholdersuch Shareholder’s possession, of the Prospectus most recent prospectus covering such Registrable Shares current Securities at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that . If the Company shall not have any obligations under this give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.07 at any time on or after 2.04(a)) by the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior number of days during the period from and including the date of the giving of notice pursuant to Section 2.04(e) to the Registration Termination Date, in which event date when the Company’s obligations under this Section 5.07 Company shall continue with respect make available to such offering until it is so completed (but not more than 60 days after Shareholder a prospectus supplemented or amended to conform with the commencement requirements of the offeringSection 2.04(e).
(gk) Notwithstanding anything The Company shall use its commercially reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange or quotation system on which any of the contrary in this Article V, Registrable Securities are then listed or traded.
(l) The Company shall have appropriate officers of the Company shall not be required (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to file a Registration Statement or include obtain ratings for any Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior Securities and (iii) otherwise use their commercially reasonable efforts to the anticipated filing date of the Registration Statement, information regarding such Stockholder cooperate as reasonably requested by the Company and required to achieve effectiveness underwriters in the offering, marketing or selling of such Registration Statementthe Registrable Securities.
Appears in 2 contracts
Sources: Partnership Agreement (Thomas Weisel Partners Group, Inc.), Partners’ Equity Agreement (Thomas Weisel Partners Group, Inc.)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Securities under the Securities Act as provided in Article VII, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the Registrable Securities by the Holders or the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders of the Registrable Shares covered by such Registration StatementSelling Holders, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and and, upon execution of a customary confidentiality agreement, such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration any registration pursuant to Section 2.1 or 2.2 to which the holders of a majority of the Registrable Shares covered by such Registration Statement (or their Holders’ Representative, its counsel) , or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;Law.
(iib) use reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement, and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement contemplated by Section 2.3(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making of any changes in such Registration Statement;, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iiid) use Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification qualification) of any of the Registrable Shares Securities for sale in any jurisdiction in at the United States;reasonably earliest practical date.
(ive) deliverIf requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as practicable after the Company has received such request.
(f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of the preliminary Registration Statement and final each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offering.
(g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as each selling Stockholder such Persons may reasonably request in order to facilitate connection with the disposition distribution of the Registrable Shares Securities; and the Company, subject to Section 2.4(b), hereby consents to the use of such Prospectus and each selling Stockholder amendment or supplement thereto by each of the Selling Holders and the managing underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;Prospectus and any such amendment or supplement thereto.
(vh) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Selling Holders, the managing underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares Securities for offer and sale under such other the securities or blue sky “Blue Sky” laws of such U.S. jurisdictions within the United States as each selling Stockholder any Selling Holder or managing underwriter(s) reasonably requests in writing and continue to keep each such registration or qualification in effect in (or exemption therefrom) effective during the period such jurisdictions for as long as the applicable Registration Statement may be is required to be kept effective under this Agreement (provided and to take any other action that may be necessary or advisable to enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would is not otherwise be required to qualify but for this subparagraph (v)then so qualified, (Bii) subject itself to taxation in any such jurisdiction where it is not then so subject, or (Ciii) consent take any action that would subject it to general service of process in any such jurisdiction);jurisdiction where it is not then so subject.
(vii) notify Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each selling Stockholder Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling Holder will be transferred in accordance with the Registration Statement, and each distributor enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at least two Business Days prior to any sale of Registrable Securities.
(j) Use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities within the United States, except as may be required solely as a consequence of the nature of such Selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of Securities.
(k) Upon the occurrence of any event as contemplated by Section 2.3(c)(ii), (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a result of which supplement or post-effective amendment to the Prospectus included in such Registration Statement contains or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omits 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.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, and, at provide a CUSIP number for the request Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Stockholder, the Company shall use Registration Statement.
(n) Use its reasonable best efforts to preparecause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on each national securities exchange, as soon as practicalif any, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make on which similar securities issued by the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);Company are then listed.
(viio) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, enter Enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriters of such offering may request in order underwriter(s), if any, to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Shares Selling Holders and the underwritersmanaging underwriter(s), if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters Selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of counsel to the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling holders Selling Holders of the Registrable Shares) Securities), addressed to such underwriters each Selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe managing underwriter(s), if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters; providedmanaging underwriter(s), however, that such records and other information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ixiii) use its reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities obtain “comfort” letters and updates thereof from the independent certified public accountants of the same class issued 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 then listed;
(xrequired to be, included in the Registration Statement) provide a transfer agent and registrar for all who have certified the financial statements included in such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the transfer agent accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with printed certificates for underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 2.5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders of a majority of the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder being sold in connection therewith and the managing underwriters of any Underwritten Offeringunderwriter(s), if any:
, and (1v) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request deliver such documents and certificates as may be reasonably requested by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) Holders of a majority of the notification Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the Company by the SEC continued validity of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder.
(p) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate documents and properties of the Company contained and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubtsuch representative, the provisions of clauses (viimanaging underwriter(s), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing attorney or accountant in connection with such registrationRegistration Statement.
(cq) Each Stockholder agrees by having Cause its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant officers to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice, provided, however, that the time periods under this Article V with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and their reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach support the marketing of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after Registrable Securities covered by the Registration Termination DateStatement (including, unless an Underwritten Offering without limitation, by participation in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event “road shows”) taking into account the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering)business needs.
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Americredit Corp), Registration Rights Agreement (Leucadia National Corp)
Registration Procedures. (a) Whenever a Stockholder requests or provides notification to If and whenever the Company is required to use its reasonable best efforts to effect the registration of joining in a request that any Registrable Shares be registered pursuant to this Article VSecurities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall use reasonable best efforts effect such registration to effect, as soon as practical as provided in this Article V, the registration and permit the sale of such Registrable Shares Securities in accordance with the intended method or methods of disposition thereof, and, and pursuant thereto, thereto the Company shall cooperate in the sale of the securities and shall, as soon expeditiously as practical as provided hereinpossible:
(ia) subject to the other provisions of this Article V, use reasonable best efforts to prepare and file file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with respect the intended method or methods of distribution thereof, and use its reasonable best efforts to such Registrable Shares and cause such Registration Statement to become effective (unless it is automatically as soon as practicable and to remain effective upon filing), as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto and, to the extent reasonably practicable, (including documents that would be incorporated by reference or deemed to be incorporated therein by reference in a Registration Statement filed pursuant to a request for a Demand Registrationreference), the Company shall furnish or otherwise make available to the holders Holders of the Registrable Shares Securities covered by such Registration Statement, their counsel and the managing underwriter(s)underwriters, if any, copies of all such documents proposed to be filed (including exhibits thereto)filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC and proposed response theretoSEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus, Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders Holders of a majority of the Registrable Shares Securities covered by such Registration Statement (or their counsel) or the managing underwriter(s)underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company’s counsel, such filing is necessary to comply with applicable law;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such each Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement continuously effective for during the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Shares covered by such Registration Statement, provided herein and to comply in all material respects with the applicable requirements provisions of the Securities Act with respect to the disposition of all the Shares securities covered by such Registration Statement during such period in accordance Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended methods provisions of the Securities Act with respect to the disposition set forth in of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(c) notify each selling Holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) use reasonable best efforts to obtain of the withdrawal issuance by the SEC of any stop order suspending the effectiveness of any a Registration Statement, Statement or the lifting initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(n) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares Securities for sale in any jurisdiction in jurisdiction, or the United States;
(iv) deliverinitiation or threatening of any proceeding for such purpose, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as each selling Stockholder may reasonably request in order to facilitate the disposition of the Registrable Shares of each selling Stockholder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(v) use reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such U.S. jurisdictions as each selling Stockholder reasonably requests and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
(vi) notify each selling Stockholder and each distributor of such Registrable Shares identified by such Stockholder, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of the occurrence happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement contains an or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits a 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, andand that in the case of the Prospectus, at the request of such Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Shares, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Stockholders Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(viid) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(e) if requested by the managing underwriters, if any, or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the case opinion of an Underwritten Offering counsel for the Company, in compliance with applicable law;
(f) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (g) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(h) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten business days prior to having to issue the securities;
(i) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which each selling Stockholder participates pursuant case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(j) upon the occurrence of any event contemplated by Section 4(c)(vi) above, prepare a Demand Registrationsupplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a Piggyback 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 the Registration or Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(l) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(m) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, prior to the effectiveness of such Registration Statement (or, if such Registration is an S-3 Shelf Registrationinitial public offering, use its reasonable best efforts to cause such Registrable Securities to be so listed within ten business days following the effectiveness of such Registration Statement);
(n) enter into such agreements (including an underwriting agreement containing such provisions (including provisions for indemnificationin form, lockups, opinions of counsel scope and comfort letters), substance as is customary in underwritten offerings) and take all such other customary and reasonable actions as reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters of such offering may request in order underwriters, if any) to expedite or facilitate the disposition of such Registrable Shares, including, causing its officers to use their reasonable best efforts to support the marketing of the Registrable Shares covered by the Registration Statement (including making members of senior management of the Company available at reasonable times and places to participate in “road-shows” that the managing underwriter determines are necessary to effect the offering), adding information requested by the managing underwriters to the ProspectusSecurities, and making in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders Holders of such Registrable Shares Securities and the underwriters, if any, with respect to the business of the Company and its material Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested;
, (viiiii) in the case of an Underwritten Offering in which each selling Stockholder participates pursuant use its reasonable best efforts to a Demand Registration, a Piggyback Registration or an S-3 Shelf Registration, and furnish to the extent not prohibited by applicable law, (A) make reasonably available, for inspection by the managing underwriters selling Holders of such offering and one law firm and accounting firm acting for such managing underwriters, pertinent corporate documents and financial and other records Registrable Securities opinions of the Company and its Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by such managing underwriters or law firm or accounting firm in connection with such offering, (C) make the Company’s Auditor available for any such managing underwriters’ due diligence and have them provide customary comfort letters to such underwriters in connection therewith and to each selling holder of Registrable Shares (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and (D) cause the Company’s outside counsel to furnish customary legal opinions the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s)underwriters, if any, and counsels to the selling holders Holders of the Registrable Shares) Securities), addressed to such underwriters each selling Holder of Registrable Securities and each selling holder of Registrable Shares in connection therewiththe underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 5 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Principal Investors and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 4(n)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(o) make available for inspection by a representative of the selling Holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that such records and other any information provided under clauses (A) and (B) above shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Shares to be listed on each primary securities exchange (if any) on which securities of the same class issued by the Company are then listed;
(x) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Shares pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Shares to be sold;
(xi) make generally available to Stockholders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xii) promptly notify each selling Stockholder and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC or any other Government Entity for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding such Stockholder;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement;
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and
(5) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by this Section 5.07 cease to be true and correct. For the avoidance of doubt, the provisions of clauses (vii), (viii) and (xi) of this Section 5.07(a) shall apply only in respect of an Underwritten Offering and only if (based on market prices at the time the offering is requested by such Stockholder) the number of Registrable Shares to be sold in the offering would reasonably be expected to yield gross proceeds (prior to deducting underwriting discounts and commission and offering expenses) to such Stockholder of at least the Minimum Amount.
(b) The Company may require each selling Stockholder and each distributor of Registrable Shares as to which any registration is being effected to furnish to the Company information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.
(c) Each Stockholder agrees by having its Shares treated as Registrable Shares hereunder that, upon being advised in writing by the Company of the occurrence of an event pursuant to Section 5.07(a)(vi), each Stockholder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Shares to immediately discontinue) offers and sales of Registrable Shares pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 5.07(a)(vi), and, if so directed by the Company, each Stockholder will deliver to the Company all copies, other than permanent file copies then in each Stockholder’s possession, of the Prospectus covering such Registrable Shares current not generally publicly available at the time of receipt delivery of such notice, provided, however, that the time periods under this Article V with respect to the length information shall be kept confidential by such Persons unless (i) disclosure of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time a Stockholder such information is required to discontinue disposition of such securities.
(d) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a Prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus.
(e) It is understood and agreed that any failure of the Company to file a registration statement by court or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 5.02, Section 5.04 or Section 5.07 or otherwise in this Article V, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and reasonable best efforts to resolve those comments or overcome such failure, shall not be a breach of this Agreement.
(f) It is further understood and agreed that the Company shall not have any obligations under this Section 5.07 at any time on or after the Registration Termination Date, unless an Underwritten Offering in which a Stockholder participates has been priced but not completed prior to the Registration Termination Date, in which event the Company’s obligations under this Section 5.07 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(g) Notwithstanding anything to the contrary in this Article V, the Company shall not be required to file a Registration Statement or include Registrable Shares in a Registration Statement unless it has received from each Stockholder participating in the applicable Demand Registration, Piggyback Registration or Shelf Registration, at least five days prior to the anticipated filing date of the Registration Statement, information regarding such Stockholder reasonably requested by the Company and required to achieve effectiveness of such Registration Statement.administrati
Appears in 1 contract
Sources: Registration Rights Agreement (HD Supply Holdings, Inc.)